Citation Nr: 21032069 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-30 970 DATE: May 25, 2021 ORDER An initial rating in excess of 50 percent for an acquired psychiatric disorder, to include PTSD, panic disorder, and depression, prior to September 4, 2015, is denied. Subject to the laws and regulations governing the award of VA monetary benefits, a 70 percent rating, but no more, for an acquired psychiatric disorder, to include PTSD, panic disorder, and depression, from September 4, 2015, is granted. FINDINGS OF FACT 1. Prior to September 4, 2015, the Veteran's psychiatric disorder manifested in symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, nightmares, flashbacks, irritability, avoidance of trauma triggers and activity triggers, hypervigilance, anhedonia, low concentration, appetite loss, and feelings of worthlessness, approximating occupational and social impairment with reduced reliability and productivity. 2. From September 4, 2015, the Veteran's psychiatric disorder resulted in additional symptomology of impaired impulse control, difficulty concentrating, spatial disorientation, and significantly reduced job performance requiring psychiatric treatment and medication, approximating occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for an acquired psychiatric disorder, to include PTSD, panic disorder, and depression, prior to September 4, 2015, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a 70 percent rating, but no more, for an acquired psychiatric disorder, to include PTSD, panic disorder, and depression, from September 4, 2015, have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1992 to March 1996. This matter was previously denied by the Board in March 2020. The Veteran appealed to the Court of Appeals for Veterans Claims (Court) which, in a January 2021 order pursuant to a Joint Motion for Partial Remand (JMPR), vacated and remanded the decision, determining that the Board had failed to discuss the relevance of 38 C.F.R. § 3.156(b) when discussing the relevant appeal period. Favorable ratings in the March 2020 decision were not disturbed. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Appeal Period The Veteran submitted a claim for service connection for PTSD in August 2014. Service connection was granted in an August 2015 rating decision at 50 percent disabling, effective August 28, 2014. The Veteran did not submit a Notice of Disagreement (NOD) but submitted a claim for an increased rating accompanied by a lay statement describing his current symptomology in September 2015. A rating decision was issued in October 2015 which continued the 50 percent evaluation. A claim was submitted in January 2016 for service connection for a panic disorder. A VA PTSD examination was conducted in March 2016 in connection with that claim which contained information relevant to the service-connected psychiatric condition. An April 2016 decision denied service connection for a panic disorder. A new claim for an increased rating for PTSD was submitted in April 2016. The 50 percent evaluation was continued in September 2016 and December 2016 rating decisions. The Veteran submitted an NOD in August 2017 appealing the rating. The Board previously determined that the date of claim for an increased rating for the Veteran's psychiatric disorder was based on the April 2016 claim. Pursuant to 38 C.F.R. § 3.156(b), when new and material evidence is received prior to the expiration of the appeal period it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Evidence of record at the time of the August 2015 decision included a statement regarding the Veteran's PTSD stressors, his service treatment records and personnel records, VA treatment records through August 2015, and a VA examination. The examination demonstrated the Veteran's difficulties with work and social relationships, impaired memory, depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, nightmares, flashbacks, avoidance of trauma triggers, hypervigilance, dysphoric mood, anhedonia, and low concentration, resulting in occupational and social impairment with reduced reliability and productivity. VA treatment records demonstrated no regular mental health treatment. The Veteran regularly attended gamblers' anonymous. Evidence added within the one-year appeal period following the August 2015 decision included a lay statement from the Veteran, private treatment records, VA treatment records, and two VA examinations. The lay statement reflected worsened effects on the Veteran's employment from his psychiatric symptoms and he endorsed additional symptoms of illogical thoughts, irrational thinking, and breaking objects in anger. VA treatment records indicated that the Veteran began regular VA therapy and was prescribed psychiatric medications. The Board finds that the lay statement endorsing additional symptomology and worsened employment impacts as well as the treatment records demonstrating new psychiatric treatment and prescribed medications represent new and material evidence submitted within a year of the August 2015 decision. As such, that evidence will be considered as having been filed in connection with the original August 2014 claim and thus, the August 2015 decision did not become final. Accordingly, the relevant appeal period runs from the date of service connection, August 28, 2014, to the present. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran was granted service connection for PTSD at 50 percent, effective August 28, 2014, under 38 C.F.R. § 4.130, DC 9411, the General Rating Formula for Mental Disorders. Under 38 C.F.R. § 4.130, a 50 percent rating is warranted when there is 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where 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; 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is assignable where 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, 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, 443 (2002). Thus, the Board will consider whether "the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code," and, if so, the "equivalent rating will be assigned." Id. In Vazquez-Claudio v. Shinseki, the Federal Circuit held that 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." 713 F.3d 112, 117 (Fed. Cir. 2013) ("Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the 'frequency, severity, and duration' of a Veteran's symptoms must play an important role in determining his disability level."). Turning to the evidence of record, the Veteran underwent a VA PTSD examination in August 2015. He reported that he had been previously married and divorced. He was anxious in most social situations, avoided going dancing and to bars, and had difficulty with crowds and noise. He had been in a relationship for two years. The Veteran stated that he was less irritable and argued less. He had 2 or 3 close friends and he liked to hike with his friends. He enjoyed camping and fishing. He had previously lost friends due to gambling. He had difficulty trusting people and opening up emotionally. The Veteran had been at his current job for one year and he had had difficulty with his coworkers. He had a couple of outbursts about which he had to talk to the manager. He got irritated but tried to keep it inside. He described his performance as good. The Veteran stated that his concentration was fine but he had difficulty with memory, forgetting simple tasks and coworkers' names. The Veteran was under no current psychiatric treatment or medication. He had been in treatment for several years for gambling. The examiner indicated that relevant symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Upon observation, the Veteran was cooperative, oriented on all spheres, and had normal thought processes, average memory, and below average concentration. He denied suicidal ideation. The examiner diagnosed PTSD with symptoms of nightmares, flashbacks, insomnia, irritability, avoidance of trauma triggers and activity triggers, and hypervigilance. Also diagnosed was persistent depressive disorder with symptoms of dysphoric mood, anhedonia, low concentration, insomnia, appetite loss, feelings of worthlessness, and no suicidal ideation, but thoughts of what it would be like not to be there. The examiner also diagnosed gambling disorder. It was noted that the Veteran had previously had severe gambling, bankruptcies, and relapses. Associated symptoms were dysphoric mood, anhedonia, low concentration, insomnia, appetite loss, feelings of worthlessness, and thoughts of what it would be like not to be there. These symptoms resulted in occupational and social impairment with reduced reliability and productivity. The examiner found that his impairment was primarily from PTSD, secondarily from gambling, and lastly from depression. The Veteran submitted a statement in September 2015 describing his PTSD symptoms. He stated that he had major social issues, having one friend that he saw occasionally but angered by people in general. He had trust issues with people at work and home. The Veteran noted that one of the reasons he divorced was due to trust issues. He also described difficulties working with coworkers. He stated that he was reprimanded daily at work for his short temper or inappropriate outbursts. He described being passed over for promotion and receiving horrible reviews. The Veteran stated that this was due to a lack of focus and forgetting simple daily tasks. Examples of his memory problems included needing to install an automatic lock at home due to forgetting to lock up, forgetting to pay bills, and forgetting to pick up his children. The Veteran noted that his moods switched on a dime and that he was constantly irritable. He stated that on many occasions he thought about how others would be so much better if he was no longer there. He listed illogical thoughts and irrational thinking daily. Regarding his gambling problem, he noted that he had been in treatment for 10 years. He frequently could not control his obsessive need to dissociate his daily life and stress so that he did not have massive panic attacks. The Veteran described becoming so angry with coworkers, children, and his ex-spouse that he had broken televisions, telephones, and windows and punched walls. He stated that he had to walk away from most conversations so that they did not turn to a fight. He frequently woke up from nightmares sweating and was told that he had been screaming or swinging. Running water could set off panic attacks with difficulty breathing and shaking. He had difficulty gathering his thoughts and trouble speaking. In a September 2015 VA treatment record, the Veteran reported anger problems, sleep problems, feeling like crying all the time, and problems with gambling. He denied a history of suicidal or violent behavior. He was on no current psychiatric medication. A VA mental health initial evaluation to establish treatment was conducted in November 2015. The Veteran described a change of staff and associated cultural shift at his job (i.e., new policies, perceived favoritism, etc.) and an increased awareness of his interpersonal difficulties. He stated that he had trouble with confrontations. He denied physical aggression but worried about losing control, for example, "throwing something at someone." He had a tendency to engage in verbal arguments. As a result, he had had negative performance evaluations. He stated, "Maybe it's me, no one else seems to have problems." He had also experienced negative reviews of his task performance for forgetting to complete tasks. The Veteran had a relapse in his gambling a month previously. He was currently attending gamblers' anonymous once a week and his girlfriend controlled his finances. He described his symptoms as low mood, horrible sleep, nightmares of military stressors, guilt, anxiety, and constantly feeling emotional. He denied suicidal ideation, mania, and psychosis. In the past, he had had thoughts that he would be "better off dead." A mental status examination demonstrated that the Veteran was groomed and casually dressed; calm and cooperative; he had good eye contact; he had no psychomotor retardation or agitation; speech was fluent and non-pressured with no latency; mood was depressed and anxious; affect was anxious and tearful; thought processes were goal-directed and future-oriented; thought content included no suicidal or homicidal ideation, delusions, or audiovisual hallucinations; judgment and insight were adequate; and cognition was grossly intact. The treating clinician determined that the Veteran's current symptoms were consistent with gambling disorder, severe, and PTSD with associated depression and anxiety. The Veteran was deemed to be a low risk for harm by clinicians. Paroxetine and Naltrexone were prescribed and the Veteran was referred for VA therapy. An evaluation for VA therapy was conducted in December 2015. The Veteran presented as rather anxious with complaints of nightmares, irritability, and difficulty with relationships at work. He continued to be fully employed, lived with his girlfriend, and split custody of his two children. He enjoyed photography, hunting, and fishing. A mental status evaluation reflected that the Veteran was alert and attentive, cooperative and reasonable, had normal speech rate and rhythm, had intact language, mood was anxious and depressed, there were no perceptual disturbances, thought process was normal and coherent, thought content was normal, insight and judgment were good, memory was intact, fund of knowledge was above average, and there was no suicidal or violent ideation. Clinicians determined that he presented no significant risk to himself or others. At a VA medication management follow-up, the Veteran reported continued anxiety and insomnia. Anxiety included panic attacks of shakiness, hot flashes, and shortness of breath, occurring at both work and home, lasting 15 to 20 minutes, several times per week. The Veteran needed to remove himself to a cold environment or drink a cold glass of water to recover. His sleep was disturbed by nightmares and he sometimes awoke in a sweat. His girlfriend told him that he was physically tossing and turning, as well. There was no evidence of mania or psychosis. The Veteran denied suicidal ideation. He stated that he was still isolating at work but was able to "let go" a lot better. A mental status evaluation revealed that the Veteran was casually dressed and groomed; he was calm and cooperative; he had good eye contact; he had no psychomotor retardation or agitation; speech was fluent and non-pressured with no latency; mood was "leveled out" and affect was anxious and mostly full-range; there was no suicidal or homicidal ideation and no obsessions or delusions; thoughts were goal-directed and non-psychotic; he was alert and oriented on all spheres; there were no audiovisual hallucinations; cognition was grossly intact; and insight and judgment were adequate. The treating clinician noted that overall, the Veteran had improved moods and decreased gambling urges after four weeks on Paroxetine and Naltrexone. He complained of anxiety with panic attacks and insomnia with nightmares. Medication doses were continued and the Veteran was determined to be a low risk. A January 2016 VA mental health medication management consultation reflected that the Veteran's prescribed medications had provided significant benefits to reducing gambling urges and improving overall mood. He no longer became tearful in conversations at work due to anxiety. This had helped his work situation and he was no longer being micromanaged. He reported that his panic attacks were less frequent than before but still occurred 1 to 2 times per week without a clear trigger with associated shortness of breath, sweating, and shaking lasting 15 to 20 minutes. There was no mania, psychosis, or suicidal intent. A mental status evaluation revealed that the Veteran was casually dressed and groomed; he was calm and cooperative; he had good eye contact; there was no psychomotor retardation or agitation but a fine tremor at fingertips; speech was fluent and non-pressured with no latency; mood was "better" and affect was mildly anxious but much calmer than before; there was no suicidal or homicidal ideation and no obsessions or delusions; thoughts were goal-directed and non-psychotic; he was alert and oriented on all spheres; there were no audiovisual hallucinations; cognition was grossly intact; and insight and judgment were adequate. The Veteran was deemed a low risk. Buspirone was prescribed. A February 2016 private treatment record reflected the Veteran's report of anxiety attacks where he felt warm and had shortness of breath lasting just a few minutes without a particular trigger or pattern, resolving without sequelae. A mental status examination revealed that the Veteran was oriented on all spheres; memory was intact for recent and remote events; attention and concentration was normal; language was fluent and articulate and he was able to follow commands; and his fund of knowledge demonstrated that he was able to name months, seasons, and current events. Another VA PTSD examination was conducted in March 2016. The Veteran described symptoms of nightmares and intrusive thoughts related to military stressors; being distant from others and mistrustful; sleep disruption; hypervigilance; irritability; panic attacks about 2 to 3 times a week with symptoms of sweating, feeling shaky, sharp increase in heart rate, and difficulty breathing lasting 10 to 15 minutes and lasting up to an hour; and depression. He denied suicidal intent. The Veteran stated that he currently lived with his girlfriend of two years. His two children lived with them part-time. He indicated that he was active in parenting his children and attended their school functions. He stated that his relationship with his girlfriend was going well but that he was irritable with her. They went out occasionally but he did not like being in crowds. They hiked with friends during the summer nearly yearly. The Veteran worked with the same employer for the past three years. He was on medical leave for a month due to seizures. Prior to that, he was able to do the duties of the job and reported that he missed no time from work due to mental health issues. He said that he had some problems getting along with others there and had been written up on occasion. The Veteran was currently prescribed Duloxetine, Propranolol, Buspirone, Naltrexone, and Paroxetine. Naltrexone helped control his gambling and the other medications helped some with depression and irritability. The examiner indicated that the associated symptoms included depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Upon observation, the Veteran was casually dressed and well-groomed. He spoke freely during the examination. He did not show observable signs of anxiety or pain. He was correctly oriented to person, place, time, and purpose. His thoughts were logical and goal-directed. There were no signs of major psychopathology such as hallucinations or delusions. His affect was within normal limits and his mood was neutral to happy. Attention and memory were intact. The examiner diagnosed moderate symptoms of PTSD related to his military stressors, panic disorder without agoraphobia, and other specified depressive disorder. The examiner determined that it was less likely than not that the Veteran's panic disorder was caused by his PTSD. It was most likely that his panic disorder and service-connected PTSD mildly aggravated each other. His PTSD and depression resulted in occupational and social impairment with reduced reliability and productivity. An April 2016 private treatment record noted that the Veteran continued to have recurrent nightmares related to military experiences, intrusive thoughts, high anxiety and distress, problems with concentration and attention, anxious and irritable mood, frequent tearfulness, and reduced enjoyment in activities. He denied any history of suicide attempts and any suicidal thoughts or intent. A mental status examination demonstrated well-groomed presentation; normal station and gait; mild hand tremor; cooperative behavior; good eye contact; normal rate and volume of speech; anxious and irritable mood; full-range affect congruent with mood and frequently tearful; logical and goal-directed thought processes; no evidence of psychosis; limited insight and judgment; and no suicidal or homicidal thoughts. Clinicians noted that the Veteran's PTSD symptoms were currently quite severe and that his gambling disorder likely stemmed from his PTSD. At an April 2016 VA medication management appointment, the Veteran stated that he had chronic stress and was "fighting" his workplace for disability accommodations. He described difficulty leaving the house, associated with his recent nonepileptic psychogenic seizures. He had no mania, psychosis, or suicidal intent. A mental status examination reflected that he was casually dressed and groomed; he was calm and cooperative with good eye contact; he had no psychomotor retardation or agitation; speech was fluent and non-pressured without latency; mood and affect were anxious; he had no suicidal or homicidal intent and no obsessions or delusions; thoughts were goal-directed and nonpsychotic; he was alert and oriented on all spheres; he had no audiovisual hallucinations; cognition was grossly intact; and insight and judgment were adequate. Clinicians adjusted his medications and determined that the Veteran was a low risk. An initial evaluation at a private mental health provider was conducted in May 2016. The Veteran endorsed depressive symptoms of decrease in appetite, difficulties with sleep, nightmares, increased weight, difficulties with memory and concentration, and a loss of interest in activities. He also endorsed symptoms of PTSD of panic attacks, some hypervigilance and irritability, nightmares, and intrusive thoughts. The Veteran was currently on leave from work due to his seizures. He noticed an increase in irritability and difficulties relating to his two children. A mental status examination demonstrated that he was well-groomed; gait and station were normal; he had no abnormal movements; behavior was cooperative; eye contact was good; speech was of normal rate and volume; mood was anxious; affect was constricted; thought processes were logical, goal-directed, and coherent, with no thought blocking, racing thoughts, perseveration, or flight of ideas; no evidence of psychosis or audiovisual hallucinations; and insight and judgment were good. He denied having any significant suicidal ideation or previous suicide attempts. The Veteran underwent another VA PTSD examination in May 2016. He stated that there were no changes in his living circumstances but he was currently on leave from work due to his seizures and faced financial stress due to no unemployment disability benefits from his employer. Due to his seizures he also no longer drove. He described having nightmares regularly, depression, and frequent crying. He had not gambled in 5 months. The examiner indicated that associated symptoms included depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Upon observation, the Veteran was cooperative, appropriately dressed and groomed, had normal speech, was mildly agitated, appeared anxious and tearful at times, showed difficulty with word-finding at times, had good memory and judgment, had fair insight, and denied suicidal or homicidal ideation. The examiner diagnosed PTSD with secondary depression and panic disorder, not secondary to PTSD. The service-connected psychiatric disorder resulted in occupational and social impairment with reduced reliability and productivity. The examiner stated that the Veteran would require a low stress job in which he could work independently, such as his current job. A private individual therapy treatment note from May 2016 listed presenting issues and symptoms of confusion, decrease/increase in appetite, decreased energy/fatigue, feeling worthless, irritability, isolation, loss of interest in hobbies/activities, and weight gain. The main focus of the appointment was to decrease the Veteran's incidences of losing track of time and dissociating. There had been a number of incidents of this, but one included buying iTunes gift cards from a local retailer and not knowing he had done so. He filed a fraud claim and police became involved, but later he realized that he had purchased them and no further action was taken. In May 2016, the Veteran sought Social Security Administration (SSA) disability benefits and underwent a psychiatric assessment. The examiner stated that based on the medical evidence and the Veteran's subjective complaints, it was reasonable that he would have restrictions in social functioning and ability to focus. He was limited to simpler work tasks with limited social demands to prevent an increase in mental health symptoms. Although he stated he was unable to leave his house without others going with him, he attended mental health appointments alone and attended his children's school functions. He also was in a dog hiking group with his girlfriend where they hiked at least weekly in summer. A VA mental health medication management appointment in June 2016 reflected that the Veteran was doing "pretty good" with his emotions under control. He had continued nightmares and screaming in his sleep. He had been hiking and kayaking during the day which helped. Mania, psychosis, and suicidal ideation were denied. A mental status evaluation had normal results with anxious affect. Clinicians deemed him a low risk. Medications and therapy were continued. A June 2016 private individual therapy treatment record stated that the Veteran had a decrease in dissociative incidents and that the intensity of his symptoms was stable. Sleep continued to be difficult with thrashing around and waking up tired. He described his anxiety as a 5 or 6 out of 10. A mental status examination demonstrated that he was well-groomed; gait and station were normal; he had no abnormal movements; behavior was cooperative; eye contact was good; speech was of normal rate and volume; mood was anxious; affect was full-range and congruent; thought processes were logical, goal-directed, and coherent, with no thought blocking, racing thoughts, perseveration, or flight of ideas; there was no evidence of psychosis or audiovisual hallucinations; insight and judgment were good; and he denied suicidal and homicidal thoughts. In July 2016, the Veteran reported to private clinicians that he had had no episodes of dissociating or gaps of time as far as he could tell and the structure of taking care of his kids during the day had helped him. He continued to wake up exhausted in the morning after disrupted sleep. On a recent camping trip with his children, his son heard him scream in the middle of the night. He rated his anxiety at a 7 or 8 out of 10. A mental status evaluation was similar to that at the prior appointment. The Veteran underwent a private psychiatric evaluation in July 2016. He described symptoms of emotional lability where he would start crying for no reason, nightmares where he awoke screaming or crying, and daytime fatigue. He denied a history of hallucinations, psychiatric hospitalizations, recent or remote suicidal ideation, a history of attempts of suicide, or a history of self-harm. He continued to live with his girlfriend and was the primary caregiver for his two children during the day. He had one close friend and he and his girlfriend had mutual friends, a couple of which were good friends. He described his relationship with his parents as great. The Veteran had two dogs and he enjoyed hobbies of photography, camping, fishing, and kayaking. He was still currently on disability from his job due to his seizures. While working, his job was stressful and he felt overwhelmed. A mental status examination demonstrated that he was well-groomed; gait and station were normal; he had no abnormal movements; behavior was cooperative; eye contact was good; speech was of normal rate and volume; mood was depressed and anxious; affect was full-range, congruent, and constricted; thought processes were logical and goal-directed; there was no evidence of psychosis or audiovisual hallucinations; insight and judgment were good; and he denied suicidal and homicidal thoughts. Clinicians adjusted the Veteran's medications to address his nightmares and emotional lability. The Veteran indicated to VA clinicians in July 2016 that he was receiving all psychiatric treatment from his private providers. He reported doing well in therapy and with his prescriptions. He had not been gambling and had been enjoying sightseeing with his children and his mother, with whom he had a good relationship. Mania, psychosis, and suicidal ideation were denied. A mental status evaluation was normal. The Veteran was discharged from VA psychiatric treatment and VA-provided medications were discontinued. In an August 2016 private treatment record, the Veteran noted that his mother had been visiting and had observed him drifting multiple times during the day. He also continued to experience difficulties with sleep and nightmares. A mental status examination was normal with anxious affect. The Veteran denied any suicidal ideation, intent, or plan. He subsequently began eye movement desensitization and reprocessing (EMDR) treatment. Subsequent regular private therapy records reflected increases and decreases in symptomology and associated medication management. The Veteran's private treating clinician submitted a letter in October 2016. He described his current symptoms of memory difficulties likely associated with dissociative episodes, nightmares, and concentration lapses which had impacted his ability to work, stay focused, and concentrate. Symptoms observed in therapy included problems with word-finding, difficulties with a linear thought process, being easily overwhelmed, and difficulties regulating emotions. The clinician felt that the Veteran would be unable to perform work tasks due to his PTSD symptoms. The Veteran received a service dog to assist him with his psychiatric symptomology in October 2016. A mental residual functional capacity assessment conducted in October 2016 in connection with the Veteran's claim for SSA disability benefits demonstrated he had no understanding or memory limitations and was not significantly limited in his ability to carry out very short and simple instructions; ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; ability to sustain an ordinary routine without special supervision; ability to work in coordination with or in proximity to others without being distracted by them; ability to make simple work-related decisions; ability to complete a normal workday and workweek without interruptions from psychiatric-based symptoms; ability to ask simple questions or request assistance; ability to accept instructions and respond appropriately to criticism; and ability to maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. He was moderately limited in his ability to carry out detailed instructions; ability to maintain attention and concentration for extended periods; ability to interact appropriately with the general public; and ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. The examiner stated that the Veteran did not have the ability to sustain attention and persist in complex tasks or duties that required multi-tasking. He was also limited to only occasional, brief, superficial contact with the public or coworkers. He could maintain adequate behavior during routine encounters and could maintain acceptable relationships with supervisors but would not do well with certain supervisory styles or clashing personalities. The Veteran discontinued private therapy and reengaged with VA mental health providers in June 2017. At multiple sessions, the Veteran was alert and oriented on all spheres; his mood was sad, overwhelmed, and anxious; he made fair eye contact; he demonstrated fair judgment and insight; he denied current suicidal and homicidal ideation; and did not evidence psychosis or signs of thought disorder. He had several stressors including the death of his ex-wife, his termination from his job, financial pressures, and stress about raising his children. Medications were adjusted. In August 2017, VA clinicians noted that the Veteran's medications were working and he no longer had tearful breakdowns but did have some numbing feelings. He continued to have nightmares 3 to 4 times a week. He had not been gambling and continued to attend gamblers' anonymous. He had no mania, psychosis, or suicidal intent. A mental status evaluation was normal with good mood and euthymic affect. Clinicians determined he was a low risk and medications were continued. Subsequent regular treatment with VA providers reflected variable mood and affect but normal mental status evaluations and continued reports of disturbed sleep and nightmares. In an April 2018 statement, the Veteran reported that PTSD had a significant impact on his ability to work due to memory issues, not getting along with coworkers, and anxiety in the work environment. He attempted to obtain work accommodations but was unable to get them approved. Because he was not cleared by his doctors to return to work and no accommodations could be made, he was terminated. Since leaving work, the only thing that had reportedly helped his PTSD was his service dog by helping him be present. Prior to receiving the service dog, he had panic attacks and seizures at least 2 to 5 times per week, lasting from 15 minutes to 2 hours at a time. With the dog, he had fewer severe panic attacks, occurring about 3 times a week. He preferred to isolate himself and left his house only when his girlfriend made him. He experienced extreme anxiety in social situations and relied on his dog to keep him calm. He continued to have broken sleep with nightmares. Another VA PTSD examination was conducted in May 2018. The Veteran reported that he continued to live with his girlfriend and two children, he kept in contact with his parents, and he had a couple of friends with whom he occasionally talked. He enjoyed photography and occasionally hiked. Current treatment included counseling and medication management through VA. He currently was prescribed Duloxetine and Trazodone. He denied gambling for one year. Since his last VA examination, the Veteran stated that things had gotten worse. He had problems getting along with co-workers, he experienced stress in the work environment, and his condition was not accommodated. He experienced panic attacks at work. He continued to have interrupted sleep and nightmares. The examiner indicated that associated symptoms included depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. Upon observation, the Veteran was pleasant, well-oriented, and cooperative; he had adequate eye contact; he had goal-directed mental activity with average rate of speech; he denied suicidal or homicidal ideation and psychotic behavior; he was of average intelligence; he had normal gait and station; and no outward pain behavior was observed. He brought his service dog with him to the evaluation. The examiner diagnosed PTSD; major depressive disorder, single episode, mild, secondary to PTSD; and gambling disorder in sustained remission. The examiner determined that the Veteran's condition resulted in occupational and social impairment with reduced reliability and productivity. An August 2018 VA mental health treatment note reflected that things were going well, the Veteran was able to care for his children, and was able to work part-time with modified duties. He had a good relationship with his girlfriend and children. Sleep continued to be an issue. Upon observation, he was alert and oriented on all spheres; his mood was positive and upbeat; he had good eye contact; he demonstrated fair judgment and insight; he denied current suicidal and homicidal ideation; and he did not evidence psychosis or signs of thought disorder. The Veteran underwent another VA PTSD examination in July 2020. He reported currently taking Fluoxetine and Trazodone. He was no longer in counseling or therapy. He reported that his service dog helped to keep him in the moment and to stay focused. The examiner determined that current symptoms included depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss; impairment of short and long-term memory; memory loss for names of close relatives, own occupation, or own name; flattened affect; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances. Upon observation, the Veteran was dressed appropriately with good grooming and hygiene. His attitude was friendly and cooperative. His speech was of normal rate, rhythm, and volume. He displayed some psychomotor agitation. His affect was somewhat melancholic but controlled. He had appropriate eye contact. The Veteran demonstrated adequate comprehension and judgment, fair impulse control, and poor insight into behavior. He denied responding to internal stimuli. He was alert and oriented on all spheres. Memory and attention were grossly intact. No suicidal or homicidal ideation, intent, or plan was present. The examiner diagnosed PTSD, persistent depressive disorder, and gambling disorder. The psychiatric condition resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 1. An initial rating in excess of 50 percent for an acquired psychiatric disorder, to include PTSD, panic disorder, and depression, prior to September 4, 2015, is denied. The Board finds that a rating in excess of 50 percent for the Veteran's psychiatric disorder is not warranted prior to September 4, 2015. Prior to that date, the Veteran's condition did not require regular psychiatric treatment or medication management. He attended gamblers' anonymous but was not followed by any private or VA clinicians. The August 2015 VA examination demonstrated symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, nightmares, flashbacks, irritability, avoidance of trauma triggers and activity triggers, hypervigilance, anhedonia, low concentration, appetite loss, and feelings of worthlessness. A mental status evaluation yielded normal results and the Veteran denied suicidal ideation. Although prior to the appeal period he had divorced in part due to his trust issues, he had a functioning relationship with his cohabitating girlfriend, two children, and two or three close friends. He engaged in hobbies of hiking, camping, and fishing. He was employed and although he described difficulties with his coworkers due to irritation and outbursts, he described his performance as good. The Board finds that such a symptom presentation did not result in occupational and social impairment with deficiencies in most areas, as although the Veteran certainly had impairment in his social relationships and work life, he was able to function independently and effectively. His condition did not result in suicidal ideation; obsessional rituals which interfered 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships, or symptoms of a similar severity suggesting impairment in most areas. The Veteran's representative suggested that the Veteran indicated suicidal ideation at the August 2015 examination. The Court has held that the presence of suicidal ideation alone can support a 70 percent rating. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). However, the examiner noted that the Veteran in fact denied suicidal ideation. He endorsed having thoughts of what it would be like not to be there, but indicated no suicidal thoughts, intent, or plan such that that statement alone could be deemed suicidal ideation. Subsequent records contained the Veteran's repeated denials of suicidal ideation and treating clinicians' determinations that he was a low risk for harm to himself or others. As such, the Board finds that suicidal ideation in these particular circumstances has not been demonstrated such that a 70 percent rating is warranted based on that criterion alone. Additionally, although the Veteran had had previous difficulties with gambling, during this timeframe, he had not been gambling and had been regularly attending gamblers' anonymous, such that impaired impulse control was not a demonstrated manifestation of his condition causing impairment in most areas. Accordingly, a rating in excess of 50 percent prior to September 4, 2015, is not warranted. 2. A rating of 70 percent, but no more, for an acquired psychiatric disorder, to include PTSD, panic disorder, and depression, from September 4, 2015, is granted. The Board finds that a 70 percent rating, but no more, is warranted for the Veteran's psychiatric disorder as of September 4, 2015. His lay statement describing his worsened condition and additional symptomology was received by VA as of that date. It is the first indication in the claims file of an ascertainable increase in disability. Subsequent treatment records and examinations also demonstrated a worsening in symptoms. The September 2015 letter reflected that the Veteran's problems at his job had worsened. Whereas before he had good performance, he was now reprimanded daily, being passed over for promotion, and receiving horrible reviews. This was partially due to inappropriate outbursts. His memory difficulties had increased and he had broken objects due to angry outbursts. Difficulty gathering his thoughts and concentrating was also endorsed. This increase in symptom severity was reflected in VA treatment records. The Veteran began regular mental health treatment and was prescribed several psychiatric medications. Panic attacks and nightmares also increased in frequency, severity, and duration. The Veteran had a gambling relapse in October 2015, as well, demonstrating impaired impulse control. The Board finds that the Veteran's symptom presentation is best approximated by occupational and social impairment with deficiencies in most areas, warranting a 70 percent rating. Although there were periods where symptoms improved with medication and therapy, and indeed, the most recent treatment records indicated that the Veteran is not currently in counseling, there was no indication of sustained improvement. As such, a 70 percent rating is warranted from September 4, 2015, forward. A rating in excess of 70 percent is not merited at any point during the appeal period. Despite an increase in his psychiatric symptomology, the Veteran's presentation did not approximate total occupational and social impairment. He remained employed until going on leave for his service-connected seizures, he maintained a "good" relationship with his girlfriend and parents, and he was active in raising his two children. He maintained a few friendships and engaged in several hobbies. His psychiatric disorder did not result in gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), or symptoms of a similar severity demonstrating total impairment. (Continued on the next page) The Veteran did have several dissociative episodes where he forgot behaviors in which he had engaged; however, this occurred in the aftermath of his psychogenic nonepileptic seizures when he was taken off all of his medications. Such behavior shortly subsided and there has been no other indication of perceptual disturbances in the record. He has had significant memory loss at times but not so severe as to result in total impairment. As such, the criteria for a 100 percent rating have not been met. Accordingly, a rating in excess of 70 percent from September 4, 2015, is not warranted. Further, the Board finds that the Veteran's disability is fully capable of evaluation under the rating schedule. There is no applicable provision that would warrant a higher rating in this case. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, 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.