Citation Nr: 21026945 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-46 548 DATE: May 4, 2021 ORDER Prior to September 25, 2020, a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) due to military sexual trauma and major depressive disorder, recurrent with anxious distress; obsessive compulsive disorder with dysphoric mood is denied. Beginning September 25, 2020, a rating of 100 percent for PTSD due to military sexual trauma and major depressive disorder, recurrent with anxious distress; obsessive compulsive disorder with dysphoric mood is granted. FINDING OF FACT 1. Prior to September 25, 2020, the Veteran's service-connected psychiatric disabilities were manifested by no more than occupational and social impairment with deficiencies in most areas such as work, thinking and mood due to such symptoms as: depressed mood, anxiety, suspiciousness, 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), disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; suicidal ideation, obsessional rituals which interfere with routine activities; and, neglect of personal appearance and hygiene. However, prior to September 25, 2020, the Veteran's service-connected psychiatric disabilities did not result in more severe manifestations that more nearly approximated total occupational and social impairment. 2. Beginning September 25, 2020, the severity, frequency, and duration of the Veteran's psychiatric symptoms have more closely approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to September 25, 2020, the criteria for a disability rating greater than 70 percent rating for the Veteran's service-connected psychiatric disabilities were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. Beginning September 25, 2020, the criteria for a disability rating of 100 percent for the Veteran's service-connected psychiatric disabilities, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to December 1971. This case comes on appeal to the Board of Veterans' Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which, in part, continued a 50 percent disability rating for the Veteran's service-connected psychiatric disabilities. This case was last before the Board in September 2018. At that time, the Board, in pertinent part, remanded the psychiatric claim as well as a claim for a total disability rating based upon individual unemployability due to service-connected disability (TDIU) for further development. Significantly, the Board took jurisdiction of the TDIU issue as part and parcel of the psychiatric issue pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) based on statements from the Veteran concerning his inability to work full time due to his service-connected psychiatric disabilities. Subsequently, by rating decision dated in July 2020, the RO increased the Veteran's disability rating for his service-connected psychiatric disabilities from 50 to 70 percent disabling, effective August 19, 2014. With regard to the TDIU issue, the Veteran filed a VA Form 10182, Notice of Disagreement, in October 2020, opting to have his TDIU claim reviewed in the AMA-Direct Review Lane. As the TDIU issue is now docketed under the AMA system (as opposed to the legacy system), the Board will not consider the TDIU claim in this decision. Additional evidence was submitted after the most recent October 2020 supplemental statement of the case (SSOC). Waiver of RO consideration of the additional evidence is presumed given the date of the substantive appeal. See 38 U.S.C. § 7105(e). General Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 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 claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's service-connected psychiatric disabilities are currently evaluated as 50 percent prior to August 19, 2014, and 70 percent thereafter under DC 9411. Under the provisions of 38 C.F.R. § 4.130, the General Rating Formula for Mental Disorders is used to determine disability ratings. The General Rating Formula for Mental Disorders provides that a 10 percent rating is warranted when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 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. Symptoms listed in the General Rating Formula for Mental Disorders 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). A veteran may only qualify for a given disability rating under § 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). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite level of occupational and social impairment. Analysis By way of history, service treatment records show that the Veteran was treated for obsessive compulsive personality during his military service. The Veteran submitted an initial claim for service connection for a psychiatric disability in September 2006 and, by rating decision dated in June 2009, the RO granted service connection for obsessive compulsive disorder with dysphoric mood, assigning a 50 percent disability rating effective September 6, 2006, the date of the Veteran's claim. This initial 50 percent rating was continued by rating decision dated in April 2013. Following an August 2014 VA psychiatric examination, a special review of the Veteran's disability rating was mandated and, by rating decision dated in September 2014, the RO recharacterized the Veteran's psychiatric disability as major depressive disorder, recurrent with anxious distress; obsessive compulsive disorder with dysphoric mood and proposed to decrease the Veteran's disability rating for his psychiatric disability from 50 to 30 percent disabling. Thereafter, by rating decision dated in July 2015, the RO again recharacterized the Veteran's psychiatric, this time as PTSD due to military sexual trauma and major depressive disorder, recurrent with anxious distress; obsessive compulsive disorder with dysphoric mood and continued the initially assigned 50 percent disability rating. The Veteran disagreed with this decision and perfected this appeal. Evidence relevant to the current level of severity of the Veteran's service-connected psychiatric disabilities includes VA psychiatric examination reports dated in August 2014, July 2015, and September 2019. Also of record are VA treatment records dated through February 2021. During the August 2014 VA psychiatric examination, the examiner noted diagnoses of major depressive disorder, recurrent, mild, with anxious distress as well as obsessive-compulsive personality disorder and found that these disabilities 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, or; symptoms controlled by medication. Significantly, it was noted that the Veteran's psychiatric disabilities resulted in depressed mood and anxiety. During the July 2015 VA psychiatric examination, the examiner noted diagnoses of PTSD and obsessive compulsive disorder and found that these disabilities resulted in occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran had worked as a pastor for the past three years and continued to live with his wife and daughter. Significantly, it was noted that the Veteran's psychiatric disabilities resulted in chronic sleep impairment and disturbances of motivation and mood. In a July 2015 addendum, it was noted that the Veteran had issues with poor mood, obsessive compulsions, and anxiety which were, consistently, in the mild range or severity. No severe impairment was noted. An August 2016 mental health note describes the Veteran as apathetic, rating depression a 4/10 and 3/10 respectively, well-groomed, as having normal motor behavior, eye contact, and facial expression, a cooperative attitude, and neutral/appropriate mood and affect. A September 2017 outpatient note shows that he was not feeling hopeless about the present or future and that he had not had thoughts about harming or taking the life of himself or others. Medical notes from May 2018 through September 2018 describe the Veteran as well nourished; well-groomed; oriented with appropriate mood and affect; able to articulate well with normal speech/language, rate, volume and coherence; and, thought content normal with ability to perform basic computations and apply abstract reasoning. In March 2019, the Veteran's daughter requested that the Veteran's psychiatrist put him put on a "patch" to remedy his memory issues. The Veteran also reported having episodes where he forgets how to do simple tasks, such as putting on his coat. He also had difficulty reading and comprehending things like sermons and music. In July 2019, the Veteran was referred for concerns of dementia with some memory difficulties, and it was noted he had difficulty with twitching and forgetting where he was. During the September 2019 VA psychiatric examination, the examiner continued diagnoses of PTSD; major depressive disorder, recurrent, moderate with anxious distress; and obsessive compulsive disorder and found that these disabilities resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. It was noted that the Veteran's son was starting to become his caretaker, as the Veteran was experiencing physical and mental health problems. Significantly, the examiner found that the Veteran's psychiatric disabilities resulted in the following symptoms: depressed mood, anxiety, suspiciousness, 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), disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; suicidal ideation, obsessional rituals which interfere with routine activities; and, neglect of personal appearance and hygiene. As a result, the examiner described the Veteran as depressed and anxious and neatly dressed, but poorly groomed during the examination. The Veteran reported experiencing problems with memory and focus, causing him to consider resigning as a church pastor. He believed the medication he was prescribed could be causing these difficulties. The Veteran also reported suicidal thoughts but denied any intent or plan to attempt suicide. He indicated his PTSD symptoms had significantly worsened and that he needs the help of his son or daughter to care for himself. He also described experiencing frequent obsessive thought that is related to his anxiety and reported it interferes with his daily functioning. An April 2020 medical note provided the Veteran was having difficulty with memory and cognitive issues since 2019 and that he had a magnetic resonance imaging (MRI) scan in April 2019. The Veteran stated that his symptoms had become severe and, after having difficulty with his Christmas service, was terminated from his employment as a minister. He also stated that he had difficulty reading and processing visual information. His daughter reported significant worsening of his symptoms and inquired about assistance to help with his care. An April 2020 VA treatment record shows that the Veteran had recently undergone neuropsychiatric testing and had been advised that he met the criteria for a neurocognitive disorder. Significantly, the Veteran's working memory ranged from mildly to moderately impaired. His processing speed could not be reliably assessed due to a combination of visual difficulties (all measures had a large visual component) and his apparent difficulty recreating even simple shapes/designs. His ability to generate words to a category was impaired. Basic repetition and comprehension were within normal limits and his verbal reasoning was average. Problem solving was low average to mildly impaired. His ability to generate words to a letter was mildly impaired. He was unable to either copy a clock or draw a clock to command. When he did attempt to draw a clock to command, he placed all of the numbers on the right half of the clock face. Immediate recall of short stories was average. Delayed recall was low average. He did not forget significantly more information than would be expected following a delay. His recognition was intact. Single trial learning of a word list was mildly impaired; however, he showed a superior learning curve when the word list was repeated to you several times. As a result, overall learning was average. Delayed recall was consistently intact and he did not show evidence of rapid forgetting. Recognition was also intact. In September 2020, the Veteran's daughter reported that he had become belligerent, combative, and that his physical status was decreasing, along with his ability to ambulate. Thereafter, in October 2020, the Veteran was hospitalized for his psychiatric disabilities and records from November 2020 show that his symptoms continued to worsen. For instance, he walked outside looking for his coat. A medical note during that time described him, however, as alert and oriented, cooperative, and without significant agitation. His speech was also coherent and clear, mood euthymic, and affect congruent. He was also described as goal oriented, with good judgment, and fair insight. At that time, he was without suicidal or homicidal ideations. In January 2021, the Veteran's attending physician wrote that the Veteran had "a neurologic condition which is progressive and irreversible [and was] unable to manage his medical and financial affairs and a fiduciary should be appointed." In February 2021, medical records describe him as having more difficulty sleeping. A month later, the Veteran had suicidal thoughts and called the crisis line provided to him. A social work assessment was conducted in March 2021. The Veteran's daughter reported the Veteran is very difficult to be a full-time caregiver to, that he does not sleep except maybe an hour at a time, and he uses the bathroom every 15 minutes or so while awake. The Veteran is dependent in activities of daily living (ADLs) for bathing, grooming and dressing and the daughter had put the Veteran on a list for a nursing home, with respite care being considered. Recognizing that the symptoms listed in the rating criteria are non-exhaustive, the Board finds that, in assessing the severity, frequency, and duration of the signs and symptoms of his psychiatric disabilities, the Veteran's service-connected psychiatric disabilities more nearly approximates the level of impairment contemplated in the next higher 100 percent rating from September 25, 2020, the date on which the Veteran's daughter reported he became combative, belligerent, and could not ambulate. Significantly, the frequency and duration of the psychiatric symptoms reported throughout the medical records support this rating. Thus, the Veteran's service-connected psychiatric disabilities more appropriately warrant a staged rating of 70 percent disabling from August 19, 2014 to September 25, 2020, and 100 percent disabling thereafter. While an increased staged rating of 100 percent is warranted from September 25, 2020, the Veteran's service-connected psychiatric disabilities do not show that a rating in excess of 70 percent at any point prior to September 25, 2020. In this regard, the evidence does not show evidence of total occupational and social impairment prior to this date, especially considering his ability to continue working as a pastor through much of this time and the positive interactions he had with multiple examiners and with others. A disability rating that justifies a 100 percent rating is so severely disabling that some of the examples of symptoms include posing a "persistent" threat of danger to others, not knowing one's own name, the names of close relatives, or one's occupation. Further, symptoms consistent with a 100 percent rating may include an inability to perform activities of daily living, disorientation, impaired hygiene, and persistent delusions or hallucinations. The Veteran did not exhibit such symptoms demonstrating an increase in severity occurred to the total impairment level consistently until September 25, 2020. Therefore, the Board finds that a disability rating greater than 70 percent prior to September 25, 2020 for the Veteran's service-connected psychiatric disabilities symptoms is not warranted. Such determination is based on the totality of the medical and lay evidence and a holistic analysis. However, while the evidence of record demonstrates that, at some periods during the appeal, the Veteran's medication helped manage his psychiatric symptoms, all the evidence taken together more closely approximates the severity, frequency, and duration of symptoms contemplated by a 100 percent rating beginning September 25, 2020. See 38 U.S.C. § 5017(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). APRIL MADDOX Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becton, 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.