Citation Nr: 22017120 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-04 139 DATE: March 24, 2022 ORDER Entitlement to an increased rating in excess of 50 percent for acquired psychiatric disorders, to include major depressive disorder (MDD) and panic attacks, is denied. FINDING OF FACT The Veteran's psychiatric disorder, to include MDD, manifested to be productive of no more than 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), with symptoms such as anxiety, depressed mood, sleep impairment, and panic attacks. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active service in the United States Air Force from April 2001 to July 2003. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran is rated 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 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9434. A 70 percent rating is assigned 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: 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. 38 C.F.R. § 4.130, DC 9434. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9434. The Board notes that the criteria listed in the General Rating Formula are neither individually dispositive nor collectively exhaustive. "[Any] suggestion that the Board [is] required to find the presence of all, most, or even some, of the enumerated symptoms is unsupported by a reading of the plain language of the regulation." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Instead, the Board must "assign an evaluation based on all the evidence of record that bears on occupational and social impairment[.]" 38 C.F.R. § 4.126. 1. Entitlement to an increased rating in excess of 50 percent for acquired psychiatric disorders, to include major depressive disorder and panic attacks The Veteran claims his service-connected MDD and panic attacks are more severe than that contemplated by his 50 percent rating. The Board finds that a review of the competent and credible evidence of record, to include VA examinations and treatment records, reveal that a rating in excess of 50 percent is not warranted for the Veteran's disability. In reaching this conclusion, the Board has carefully considered the lay statements and medical evidence of record. The Veteran has been afforded multiple VA examinations to assess the nature of his service-connected psychiatric condition, in March 2017 and November 2021. The Board will discuss these examinations in turn. A March 2017 VA psychiatric examination report reflects that the examiner reviewed the Veteran's medical history and conducted an in-person interview. Based on this, the examiner concluded that the Veteran's MDD and panic attacks manifestations caused occupational and social impairment with decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Specifically, the examiner noted that the Veteran's conditions manifested with symptoms such as panic attacks with agoraphobia, as well as some social and health anxieties. The Veteran was noted to live with his girlfriend, had both social and familial relationships, and was attending school full time; to this end, the examiner noted no impairment in the Veteran's learning ability. The examiner identified some symptoms such as depressed mood, anxiety, and sleep impairment, to include difficulty falling asleep. Overall, however, the Veteran was noted to present alert and oriented, and was noted to be logical, coherent, cooperative and goal oriented. When ask, the Veteran himself noted his depression was low. He reportedly participated in social activities such as karaoke, and had a somewhat active social life, despite his proclamation of social anxiety. The Veteran reported irritability but did not note it interfering with his social interactions. The examiner provided a diagnosis of MDD and panic disorder. A November 2021 VA psychiatric examination report reveals similar results as the Veteran's previous VA examination. During the examination, the Veteran revealed that he was single, but was encouraged by his friends to start dating again. While noting he did not like crowds, he did report participating in some social activities with friends. The Veteran again seemed goal oriented, having finished college and applying to masters' programs for psychiatry. On examination, the examiner determined the Veteran's disability manifested with symptoms such as depressed mood, anxiety, chronic sleep impairment, and panic attacks more than once a week. Overall, the examiner ultimately found that the Veteran's condition was productive of occupational and social impairment with decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In order to warrant a rating in excess of 50 percent, the Veteran's condition must be manifested by occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking or 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 work like setting); inability to establish and maintain effective relationships. The Board notes that the relevant medical evidence of record, to include the VA examinations, shows that the Veteran's MDD and panic attacks, during the relevant period, have not been manifested by symptoms of such severity, frequency, or duration as to warrant a higher 70 percent rating. While he does experience panic attacks and social anxiety, the Board finds that such does not rise to the level which would warrant a finding that he is deficient in most aspects such as thinking, judgement, work, family, and mood. Here, both VA examiners considered the Veteran's panic attacks when concluding that his condition did not arise to the level of impairment contemplated by a higher rating. Additionally, during both examinations, the Veteran did not show any symptoms suggestive of the severity contemplated by a 70 percent rating. There has been no evidence of disorientation, irregular speech, in ability to adapt to stress, or maintaining personal appearance or hygiene. A close review of the VA treatment records, lay statements, and VA examinations reveal no evidence of any of such symptoms. Nor has there been any evidence or even indication of suicidal thoughts or ideations; there has been no evidence, to include during all VA examinations, that would indicate that the Veteran is a danger to himself, or to others. In this regard, a close review of the contemporaneous medical treatment records has also revealed no instances in which the Veteran reported having intentions or thoughts of suicide or homicide. Finally, the record does not demonstrate that the Veteran cannot maintain social or occupational relationships. In fact, the Board finds that there has been evidence to the contrary. While the Veteran noted irritability and social anxiety, he has continuously asserted that he maintains close friends, had a live-in girlfriend, and maintains relationships with his family. To this end, the Veteran has also been goal-oriented finishing schooling with exceptional grades, and the most recent addition to his claims file showing acceptance to graduate school for psychiatry. Thus, it cannot be said that he has social or occupational impairment in more areas. The Board finds that the Veteran endorsed few, if any, of the symptoms enumerated under the criteria for a 70 percent rating, and that his overall disability picture did not more nearly approximate deficiencies in most areas. While there is evidence of frequent panic attacks, such does not rise to the level to be considered "constant"; and such has been considered by the VA examiners, and they have concluded that even considering such, the Veteran's condition is not productive of the level requisite for a higher rating. However, even considering the Veteran's panic attacks, the Board notes that it is only one facet of the multitude of factors that must be met to warrant a higher 70 percent rating. While the Board finds that the Veteran may fulfill one or two of the factors under these higher criteria, such cannot be considered sufficient to warrant a higher rating. The weight of the probative evidence does not show that the Veteran's condition is manifested by symptoms of such severity, frequency, or duration that more closely approximate those contemplated by a higher, 70 percent rating. (Continued on the next page) Therefore, the Board finds that his disability is most appropriately rated at 50 percent, and that the evidence is against the assignment of any higher rating. The Board concludes that, as the evidence persuasively favors against service connection, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.