Citation Nr: 21041150 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-36 543 DATE: July 8, 2021 ORDER Entitlement to an initial 50 percent rating for an acquired psychiatric disorder prior to May 27, 2021, and 70 percent thereafter, but not higher, is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for back condition is remanded. FINDING OF FACT 1. For the period prior to May 27, 2021, the Veteran's acquired psychiatric disorder was charactered, at worse, by occupational and social impairment with reduced reliability. 2. For the period beginning May 27, 2021, the symptoms and impairment caused by the Veteran's acquired psychiatric disorder have more nearly approximated occupational and social impairment with deficiencies in most areas, but have not more nearly approximated total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to an initial 50 percent rating for an acquired psychiatric disorder prior to May 27, 2021, and 70 percent thereafter, but not higher, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 1987 to May 1987, January 1988 to September 1992, October 2001 to October 2002, June 2007 to July 2008, September 2008 to October 2009, and April 2010 to June 2011. In May 2021, the Veteran testified at a virtual conference hearing before the undersigned. A transcript of the hearing is associated with the claims file. 1. Entitlement to an initial 50 percent rating for an acquired psychiatric disorder prior to May 27, 2021, and 70 percent thereafter, but not higher, is granted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. 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. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as here, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time, from August 6, 2012, in this case. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. The Veteran's service-connected acquired psychiatric disorder has been rated under DC 9413, which provides that a 10 percent rating is warranted where there is 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 continuous medication. A 30 percent rating is warranted where there is 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereo-typed 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. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, mood, due to such symptoms 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 work-like setting); and the inability to establish and maintain effective relationships. Id. A 100 percent rating requires 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; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating an acquired psychiatric disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the 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. When evaluating the level of disability 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. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Analysis should not be limited to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). As an initial matter, the Board notes that the Veteran is currently in receipt of a 10 percent rating for his service-connected acquired psychiatric disorder. He contends that a higher rating is warranted. After thoroughly reviewing the evidence of record and affording the benefit of the doubt to the Veteran, the Board finds that the Veteran's acquired psychiatric disorder more nearly approximates the criteria for a 50 percent rating for the period prior to May 27, 2017, and a 70 percent rating thereafter. In July 2013, the Veteran underwent a VA examination, in which he reported that he was legally separated from his wife in 2003 and that he has three children from the marriage. Due to limited custody, the Veteran denied relationships with his children. However, he stated that his support system was comprised of friends, although he had limited social activities due to his busy schedule. The Veteran was working on his master's in business project management while working as a logistic supervisor. He denied a history of work problems but was aware of irritation and impatience. The Veteran reported anxiety attacks but denied panic attacks, though he believed he had been on the verge of panic attacks. He stated that since his return from his most recent tour, he has been easily irritated by the "little things in his environment," but he denied overt acts of aggression or property destruction. The Veteran also denied suicidal and homicidal thoughts. The examiner noted symptoms of anxiety and that the Veteran's acquired psychiatric disorder manifested as 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. He also noted the Veteran was able to perform all activities of daily living. The Veteran reported in his April 2014 notice of disagreement that he suffered anxiety attacks almost daily, as well as anger/frustration mood swings. He also provided that he constantly felt irritated, with difficulty sleeping. For the period prior to May 27, 2021, though the Board acknowledges that the Veteran's acquired psychiatric disorder causes him significant difficulties, the Board finds that the Veteran's condition more nearly approximated the criteria for a 50 percent rating. The Veteran reported almost daily anxiety attacks, as well as anger/frustration mood swings. However, the Veteran's symptomatology does not rise to the level contemplated by a 70 percent or higher disability rating during that period. The Veteran has not shown an inability to establish and maintain effective relationships, although he is somewhat socially isolated. On the contrary, by the Veteran's reports, he had maintained positive relationships with his family members and some friends. The Board acknowledges the Veteran's testimony of severe psychiatric symptoms, but the Veteran did not testify as to when he began suffering from symptoms that more nearly approximated the criteria for a 70 percent rating. The evidence of record for the period prior to May 27, 2021 demonstrates that the Veteran denied suicidal and homicidal ideations, was in a master's program, and was employed. Accordingly, the criteria for a 70 percent rating have not been met. See Vazquez-Claudio, 713 F.3d at 118. The evidence is likewise against a finding of total occupational and social impairment. On review, the Board can find no evidence of record indicating gross impairment of thought processes or communication, persistent delusions or hallucinations, memory loss for names of close relatives, or other symptoms of similar type and degree. Additionally, the Veteran was employed while obtaining a master's degree, and though he denied familial relationship, he had friends as a support system. Thus, he cannot be considered to have been totally impaired with respect to social and occupational functioning. At his May 2021 virtual hearing, the Veteran testified that he has not sought psychiatric treatment since 2013. However, he testified to symptoms that included depression, being highly irritable and frustrated, panic easily and "all the time," and strong social and crowd avoidance. He cannot be a passenger in a car because he feels he needs to jump out. He also has unprovoked irritability, including flipping a table over and slamming a cup against the wall. The Veteran testified he has a girlfriend and three children and is developing a better relationship with his youngest child. He currently has a job at Amazon but believes his extreme social isolation will hinder his ability to be promoted as he does not sit with other managers. Instead, he sits alone in the cafeteria and must write down tasks so he does not forget. He also goes to work one hour early because he has a routine and a pattern. He described difficulty adapting to stressful circumstances and endorsed feelings of suicidal and homicidal ideation. The Board finds that the Veteran's condition more nearly approximates that required for a 70 percent disability rating for the period after May 27, 2021. In particular, the Board finds that the Veteran began experiencing suicidal and homicidal ideations, and this symptomatology rises to the level of that contemplated by the 70 percent disability rating. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting general competence to testify as to symptoms). Combined with the Veteran's other symptoms that include anxiety, irritability, anger, depression, some social isolation, and inability to adapt to stressful circumstances, and the Board finds that the Veteran's overall disability picture is best characterized as occupational and social impairment with deficiencies in most areas. However, the preponderance of the evidence demonstrates that the Veteran's acquired psychiatric symptoms have not risen to the severity, frequency, and duration required for a 100 percent schedular rating for the entire appeal period, which contemplates "total" occupational AND social impairment. Notably, as stated above, despite his serious symptomatology, the Veteran has maintained some positive relationships with his family and friends, and thus cannot be said to be totally socially impaired. The Board knowledges that the Veteran testified to difficulties while working, including eating alone and potential bar to promotions, but notes that the Veteran is still working full-time. Moreover, although not dispositive of the issue, the Board notes that the Veteran has not exhibited gross impairment of thought processes and has been shown to be able to communicate clearly; there is no evidence to indicate grossly inappropriate behavior or an absolute inability to perform activities of daily living. The Veteran has not been noted to have hygiene issues. The evidence does not indicate that the Veteran's suicidal or homicidal ideation rises to a level reflecting a persistent harm to himself or others as no plans or attempts were ever made. Though the Veteran lashes out, he has not harmed anyone. There are no other symptoms of such severity to result in the Veteran's total occupational and social impairment. For all the foregoing reasons and affording the Veteran the benefit of the doubt, the Board finds that the evidence shows an overall impairment caused by his acquired psychiatric disorder more nearly approximates 50 percent prior to May 27, 2021, and 70 percent thereafter. 38 U.S.C. §5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Accordingly, the claim for an initial 50 percent rating for an acquired psychiatric disorder for the period prior to May 27, 2021, and an initial rating of 70 percent, but no higher, for the period thereafter is granted. REASONS FOR REMAND 2. Entitlement to an initial rating in excess of 10 percent for back condition is remanded. Upon review of the record, the Board finds that the claim must be remanded for a new VA examination. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claim. The Veteran underwent a back examination in March 2014. The Board notes that the March 2014 examination report is inadequate for adjudication purposes as it does not comply with the holdings of Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, the Veteran has testified at his May 2021 virtual hearing that his back has worsened, and he has associated neurological symptoms. The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims file any relevant outstanding treatment records. 2. Schedule the Veteran for an examination to determine the severity of his back condition. The examiner should report all signs and symptoms necessary for evaluation of the Veteran's back condition under the rating criteria. In particular, the examiner should provide range of motion test results (in degrees) for the Veteran's lumbar spine on active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the lumbar spine is used repeatedly over a period of time. The examiner should specifically indicate whether the Veteran experiences any limitation of motion that is attributable to pain and at what point during the range of motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups and, if so, the examiner must estimate the range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.