Citation Nr: 21027830 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-20 379 DATE: May 6, 2021 ORDER Entitlement to a rating in excess of 70 percent for a psychiatric disability, as of November 20, 2019, is denied. Entitlement to a rating of 70 percent, but no greater, for a psychiatric disability, for the rating period under consideration prior to November 20, 2019, is granted. FINDINGS OF FACT 1. During the entire rating period, the severity, frequency, and duration of the Veteran's psychiatric disability symptoms more nearly approximated an inability to establish and maintain relationships outside of his family; difficulty adapting to stressful circumstances and impaired impulse control with symptoms of unprovoked irritability; obsessional rituals interfering with routine activities; and speech intermittently illogical, obscure, or irrelevant. 2. During the entire rating period, the severity, frequency, and duration of the Veteran's psychiatric disability symptoms did not more closely approximate total social impairment. CONCLUSIONS OF LAW 1. The criteria for a higher rating in excess of 70 percent for a psychiatric disability, as of November 20, 2019, 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 9411. 2. The criteria for a higher rating of 70 percent, but no greater, for a psychiatric disability, for the rating period under consideration prior to November 20, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In December 2020, the Board remanded the claims on appeal, along with an additional claim for service connection for hypertension, to the Agency of Original Jurisdiction (AOJ) for further development. An April 2021 rating decision established service connection for hypertension. Because the April 2021 rating decision fully granted the claim, the issue of entitlement to service connection for hypertension is no longer on appeal. Increased Rating 1. Entitlement to a higher rating in excess of 70 percent for a psychiatric disability, as of November 20, 2019 2. Entitlement to a higher rating in excess of 50 percent for a psychiatric disability, prior to November 20, 2019 Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. A Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. Separate ratings can be assigned for separate periods of time during the claim period based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations allow Veterans to have separate ratings under different diagnostic codes for the same injury; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran contends that service-connected psychiatric disability symptomatology has more nearly approximated that required for a rating in excess of the currently assigned 50 percent and 70 percent ratings under the required Diagnostic Code. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, 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 (Fed. Cir. 2013). Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to 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. A 70 percent rating is assigned when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to 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. A 100 percent rating is assigned when there is total occupational and social impairment due to symptoms such 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 Board finds that, for the entire rating period, to include that prior to November 20, 2019, the Veteran's psychiatric disability symptomatology more nearly approximated that required for a 70 percent rating under the General Formula. The Veteran retired from working prior to the period under appeal, and, therefore, the record contains no reports of the Veteran's interactions with coworkers. However, during the rating period, the Veteran displayed difficulty adapting to stressful circumstances and impaired impulse control with symptoms of unprovoked irritability. For example, in one incident, the Veteran was at a campsite on a hunting trip with his grandson past nightfall. The Veteran saw a trio of hunters holding their guns in his grandson's direction while unloading their ammunition in violation of both the rules of gun safety and state law. Enraged, the Veteran confronted the men, and threatened them with potential violence for both violating the law and putting his grandson in potential danger. The Veteran also reported obsessional rituals interfering with routine activities, including having to check doors at night and avoiding crowds. Moreover, VA examiners indicated that, upon examination, the Veteran's speech was intermittently illogical, obscure, or irrelevant. Based on the above, the Board finds that the Veteran's symptoms more nearly approximated an inability to establish and maintain relationships outside of his family. Therefore, for the entire rating period, the Board finds that the Veteran's symptoms more nearly approximated those required for a 70 percent rating. The Board finds that, for the entire rating period, the Veteran's psychiatric disability symptomatology did not more nearly approximate that required for a maximum 100 percent rating under the General Formula. The Board notes that the Veteran has reported experiencing particular difficulty remembering names, to include those of family members. That form of forgetfulness is potentially suggestive of the level of impairment required for a 100 percent rating. However, the record for the entire rating period does not contain any notations indicating that the Veteran experienced other symptoms suggestive of 100 percent rating, such as gross impairment in thought or communication; persistent delusions or hallucinations; an intermittent inability to perform activities of activities of daily living, including maintenance of minimal personal hygiene; or disorientation to time or place. Throughout the entire rating period, the Veteran consistently denied experiencing any form of suicidal ideation. The Veteran reported an irritable outburst during which he threatened others with violence when they threatened one of his family members. However, throughout the period under appeal, the Veteran has been able to control his anger and refrain from any actual physical altercations. Therefore, the record does not contain evidence indicating that the Veteran's psychiatric symptoms make him a persistent danger to himself or others. Most importantly, the Board finds that, during the rating period, the Veteran's psychiatric disability did not result in the total impairment of social relationships contemplated by a 100 percent rating. Throughout the entire rating period, the Veteran has maintained strong relationships with his immediate family. The Veteran has indicated that he experiences appropriate feelings of love and devotion for both his spouse and grandchildren. Therefore, the Board finds that, during the entire rating period, the Veteran's psychiatric disability symptomatology did not more nearly approximate the total social impairment required for a maximum 100 percent rating. Therefore, for the rating period on appeal, prior to November 20, 2019, the Board finds that the criteria for a 70 percent rating have been met. The Board also finds that, for the entire rating period, the preponderance of the evidence is against a claim for a rating higher than 70 percent and any claim for a higher rating must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.M. Gillett 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.