Citation Nr: 21040035 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-03 941 DATE: July 2, 2021 ORDER A 50 percent initial rating for a psychiatric disability is granted. FINDING OF FACT For the entirety of the period on appeal, the Veteran's psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity but has not resulted in occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a 50 percent initial rating for a psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to April 1971. This matter comes before the Board of Veterans Appeals (Board) on appeal from a January 2014 rating decision. This matter was previously remanded by the Board in June 2019 and March 2021. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). An increased rating for a service-connected psychiatric disability Legal Criteria Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. When a question arises as to which of two ratings shall be applied under a diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's psychiatric disability is rated under the General Rating Formula for Mental Disorders, which provides that a 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as, for example: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as, for example: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as, for example: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. The symptoms listed in VA's general rating formula for mental disorders are not an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board is precluded from differentiating between symptoms attributable to service-connected and nonservice-connected mental health disorders absent clinical evidence clearly showing such distinction. Mittleider v. West, 11 Vet. App. 181, 182 (1998). When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a). The evaluation must be 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 time of examination. Further, a rating cannot be assigned solely based on social impairment. 38 C.F.R. § 4.126 (b). Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App, 119 (1999). Factual Background & Analysis A January 2014 VA examination report documents that the Veteran lives with his fiancé and daughter and that they have a "fair" relationship. He maintains contact with his five surviving siblings and his mother. The Veteran last worked in 2008 when he was laid off. He reported no disciplinary actions against him while he was employed. The "behavioral observations" portion of the examination report did not document any abnormalities. The Veteran endorsed intermittent depressed mood and some sleep impairment (five to six hours a night). He has intermittent irritability, some anxiety and reported a panic attack related to a fireworks display. A February 2014 statement from the Veteran's partner stated that he has panic attacks three to four times a week and nightmares that disturb his sleep. She noted that the Veteran's VAMC mental health provider told him that she was increasing his medication due to worsening nightmares. In the July 2014 NOD the Veteran described frequent nightmares and dizziness that impair his mood and thinking. He also stated that his psychiatric disability makes it difficult for him to interact socially and negatively impacts his daily activities. In the January 2016 substantive appeal (VA Form 9), the Veteran stated that he experiences constant mood and motivation swings. He loses his focus while driving and has trouble completing small tasks due to memory deficiencies. An April 2016 VA examination report documents that the Veteran has a 20-year-old daughter that he has a pretty good relationship with. He has siblings that he talks to all the time and maintains contact with friends on social media. Symptoms noted to actively apply to the Veteran's diagnosis are depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events. The Veteran sleeps on the couch due to his nightmares and his wife can hear him yelling in his sleep. No abnormalities were noted in the "behavioral observations" portion of the examination. The Veteran endorsed chronic depressed mood and passive suicidal ideation with no intent or plan. He has sleep impairment because of nightmares and wakes up thinking there's someone in the house, irritability, anxiety, panic attacks and memory/concentration problems. VAMC mental health notes spanning from May 2016 to December 2016 documents depression/anxiety graded as a 6 to 7 out of 10. He has panic attacks one to two times a day. He gets on average four to five hours of sleep a night. He denied any suicidal ideation, intentions, or plan. He tends to avoid crowds and reported that breathing exercises have helped with anxiety. He reported plans to get active in church and exercise more. VAMC mental status examinations from January 2017 to December 2019 document depressed mood and chronic moderate psychological distress. He reported moodiness including snapping at his partner. He stated that he is getting more anxious and moodier. The Veteran was noted to present with adequate grooming, coherent speech, congruent affect, and appropriate insight/judgment. A December 2019 VA examination report documents that the Veteran still has a positive relationship with his daughter, a positive marriage and approximately five close friends. Symptoms associated with his diagnosis were noted to be depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The "behavioral observations" portion of the examination report noted anxious mood. March 2021 VAMC mentals status examinations noted some improvement in nightmares, breathing exercises aid with panic before going to sleep. The Veteran reported that his grandchildren keep him busy. He reported some symptoms of depressed mood that don't last for long. He had a fleeting passive thought of "wishing he was dead" three weeks prior but denied any suicidal ideation, plan, or intent. After a thorough review of the lay and medical evidence, and affording the Veteran the benefit of the doubt, the Board finds that evidence is in relative equipoise as to whether the criteria for a 50 percent rating for a psychiatric disability are met from February 25, 2014 onwards. This is the date the Veteran's partner wrote a statement describing worsening symptoms including panic attacks more than once a week and severe nightmares/sleep impairment requiring an increase in his prescribed medication. Moreover, the Veteran conveyed in the July 2014 NOD that he has frequent nightmares and dizziness that impair his mood and thinking. He also stated that his psychiatric disability makes it difficult for him to interact socially and negatively impacts his daily activities. Under the circumstances, the Board finds the evidence is in relative equipoise as to whether the Veteran's service-connected psychiatric disability has caused occupational and social impairment with reduced reliability and productivity during the relevant period. Specifically, with respect to impairment of mood (irritability, depression, and anxiety issues), thinking (panic attacks three to four times a week) and social functioning generally. Consequently, and resolving all reasonable doubt in favor of the Veteran, the criteria for a 50 percent rating for a psychiatric disability have been met. However, the Board finds that a preponderance of the evidence weighs against finding that the criteria for a higher 70 percent rating have been met at any point during the period on appeal. A higher 70 percent rating is warranted for a psychiatric disability that causes occupational and social impairment, with deficiencies in most areas due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or an inability to establish and maintain effective relationships. During this period, the Veteran was noted to have difficulty in establishing and maintaining effective relationships; however, the entirety of the Veteran's disability picture must be analyzed to determine whether his psychiatric disability has caused occupational and social impairment with deficiencies in most areas, In that regard, the evidence reflects that the Veteran has maintained good relationships with his daughter, siblings and partner, in addition to having five close friends he socializes with. Moreover, his psychiatric disability has never been characterized as causing a clinically significant degree of occupational impairment. The numerous mental health evaluations of record have also not documented any observable behavioral or cognitive abnormalities associated with the Veteran's psychiatric disability (i.e. adequate grooming; normal judgment, speech, and thought process). Overall, the evidence indicates that the Veteran appears to have retained a notable degree of normal functioning in terms of his work, judgment, and thinking. Consequently, the preponderance of the evidence weighs against finding that the Veteran's psychiatric disability has caused symptoms and deficiencies approximating occupational and social impairment with deficiencies in most areas during the appeal period which would warrant a higher 70 percent rating and, to that extent, the appeal must be denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.