Citation Nr: 22018571 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 11-05 206 DATE: March 29, 2022 ORDER Prior to January 9, 2013, entitlement to a 50 percent but no higher rating for dysthymic disorder is granted. From January 9, 2013 through March 24, 2014, entitlement to a rating in excess of 50 percent for dysthymic disorder is denied. From March 24, 2014 to December 4, 2015, entitlement to a 70 percent but no higher rating for dysthymic disorder is granted. From December 4, 2015, entitlement to a rating in excess of 70 percent for dysthymic disorder is denied. FINDINGS OF FACT 1. Prior to January 9, 2013, the level of severity of the Veteran's dysthymic disorder was best characterized as occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas was not shown. 2. From January 9, 2013 through March 24, 2014, the level of severity of the Veteran's dysthymic disorder was best characterized as occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas was not shown. 3. From March 24, 2014, the level of severity of the Veteran's dysthymic disorder has best been characterized as occupational and social impairment with deficiencies in most areas; total occupational and social impairment was not shown. CONCLUSIONS OF LAW 1. Prior to January 9, 2013, the criteria for entitlement to a 50 percent but no higher rating for dysthymic disorder were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9433. 2. From January 9, 2013 through March 24, 2014, the criteria for entitlement to a rating in excess of 50 percent for dysthymic disorder were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9433. 3. From March 24, 2014, the criteria for entitlement to a 70 percent but no higher rating for dysthymic disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9433. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2000 to July 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2015, the Veteran testified at a hearing before the undersigned. A transcript of that hearing is of record. In September 2015 and April 2017, the Board remanded the matter for further development. An October 2008 rating decision granted service connection for dysthymic disorder and assigned a 30 percent disabling. In April 2010, the Veteran filed an increased rating claims for the service-connected disability. A July 2010 rating decision continued the 30 percent rating. A November 2013 rating decision increased the rating to 50 percent, effective January 9, 2013. In an April 2016 rating decision, the RO granted a 70 percent rating for the Veteran's dysthymic disorder, effective December 4, 2015. The RO also granted a total disability rating based on individual unemployability (TDIU), effective August 21, 2015. Additionally, in the April 2017 decision, the Board granted an earlier effective date of March 24, 2014 for TDIU. The Board notes that the Veteran did not subsequently appeal the April 2017 Board decision pertaining to the effective date assigned for TDIU and also has not otherwise indicated that he disagrees with the effective date assigned for this benefit, or that he was unemployable due to service-connected disability prior to March 24, 2014. Consequently, the matter of entitlement to an earlier effective date for TDIU is not on appeal. Moreover, even if the matter could be considered on appeal, the Board finds that prior to March 24, 2014, the Veteran's service-connected disabilities (i.e. dysthymic disorder, eczema, left knee disability, right knee disability, left inguinal hernia, migraines and surgical scar), did not preclude him from obtaining and retaining substantial gainful employment. In this regard, the evidence shows that despite these disabilities, the Veteran was able to work full time, to a substantially gainful level, prior to this date, including earning up to $4466 per month working in customer service from January 2013 to December 2013 and earning up to $3750 per month working as clerk team leader for the Census Bureau from November 2008 to December 2010. See e.g. December 2015 VA 21-8940, Application for TDIU. Further, there is no indication or allegation that these positions constituted any form of sheltered employment. Moreover, the Veteran has not specifically alleged that his service-connected disabilities rendered him unable to obtain or retain substantial gainful employment prior to March 24, 2014. Increased ratings for service-connected psychiatric disorder. The Veteran has contended that he is entitled to higher ratings for his service-connected psychiatric disorder. 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). Under this formula, which is applicable to the Veteran's service-connected psychiatric disorder, characterized as dysthymic disorder, a 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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; or memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code (Code) 9433. The issue in this appeal is whether the Veteran's associated symptoms of dysthymic disorder caused the level of impairment required for any higher rating for the time periods in question. Factual Background At an October 2009 VA mental health visit, the Veteran reported continued difficulty with mood swings, feeling sad most of the time, isolating from others, not participating in activities, and experiencing low energy and motivation. He also reported having interpersonal difficulties with his mother, whom he lived with. He indicated that he had recently got a job and hoped to move out soon. The Veteran also admitted to feeling paranoid about other people talking about him or feeling like everything bad that happened was his fault. He indicated that he had low self-esteem and always jumped to the conclusion that things were his fault. Additionally, he reported sleeping too much at times. He denied suicidal or homicidal ideation or auditory or visual hallucinations. Mental status examination showed that the Veteran's affect was restricted, his insight was fair, and his judgment was good. The diagnostic assessment was major depressive disorder with continued depressed mood, isolation, low energy, and anhedonia. It was noted that the Veteran was off psychiatric medication, as a prior trial had caused headaches. He was prescribed a trial of bupropion and was encouraged to enroll in psychotherapy. At a November 2009 VA mental health visit, the Veteran reported that he took the bupropion (Wellbutrin) for two weeks but that it caused headaches, so he stopped taking it. He reported that he continued to have depression 'on and off' mostly related to arguments with his mother and from low self-esteem. He indicated that he looked forward to moving out of his mother's home soon and planned to go to college and to get a full-time job. The Veteran reported that he had just gotten enrolled in health insurance through his job and would pursue finding a psychiatrist or psychologist for care in the private sector. Mental status examination showed depressed mood on and off, and restricted affect with fair insight and good judgment. At a June 2010 VA contract examination, the Veteran reported problems with losing interest in things, thinking that people did not have his best interest in mind, and thinking that people at work were trying to get him in trouble. He noted he would isolate and not shower for 2 to 3 days at a time and noted having no friends. He reported monthly episodes of depression for 2 to 3 weeks at a time, rated 8 out of 10 in severity. He also reported irritability that occurred once weekly, rated 7 out of 10 in severity. The Veteran indicated that he had been seen by a VA psychiatrist and had been prescribed psychiatric medications. However, he had stopped taking the medication because it was causing headaches. It was noted that the Veteran was employed in a full-time temporary position with the U.S. Census Bureau and that he had not lost any time from work in the past 12 months. The Veteran reported that he had lived with his mother since 2008. He noted problems with the relationship as he felt that his mother treated him like a child. He indicated that had irritability toward his mother and good relationships with other family members. He reported that he had no friends locally as he had problems with trust issues. He indicated that he did speak with a girlfriend via phone once every 2 weeks and that she lived in South America. The examiner found that the Veteran did not have any impairment in thought processes or communication and did not have any delusions, hallucinations, or inappropriate behavior. He had had a history of suicidal thoughts with the last instance over a year ago. However, one month previously he did report thinking that he wished he were dead. He did not report any current suicidal ideation. The Veteran demonstrated difficulty with his short-term memory but no problems with his long-term memory capacities. He correctly recalled the contents of his breakfast and his activities a week ago. The Veteran reported mild memory impairment on a daily basis. He did not report any obsessive or ritualistic behavior that interfered with routine activities. He also did not exhibit any irrelevant, illogical, or obscure speech patterns. The Veteran reported he experienced a depressed mood most of the day, for more days than not, rather than characteristic major depressive episodes, for at least 2 years. He also reported the presence, while depressed, of the following symptoms: overeating; hypersomnia, low energy, or fatigue; low self-esteem; difficulty making decisions; and feelings of hopelessness. Additionally, he reported an enduring pattern of personality characteristics in the Dependent spectrum but did not meet full criteria for Dependent Personality Disorder. Specifically, he reported a pervasive and excessive need to be taken care of that lead to submissive and clinging behavior and fears of separation, beginning by early adult hood and present in a variety of contexts. In this regard, he needed others to assume responsibility for most major areas of his life. He also had difficultly expressing disagreement with others because of fear of loss of support or approval. The examiner indicated that the Veteran could not provide a clear indication of how depression impacted his employment. The examiner noted that his description of work limitations appeared more related to dependent personality traits rather than due to depression though the Veteran did note that depression causes him to socially isolate. The examiner did not find that the Veteran had any anxiety or impaired impulse control. The Veteran did endorse sleep impairment, including hypersomnia approximately 3 times per week, noting that he would sleep 12 to 14 hours, taking multiple naps. The Veteran reported that this did not interfere with daytime activities, indicating that he had to work, he would do so. The Veteran reported sporadic periods of heavy alcohol use, noting last heavy use six months previously. He defined heavy use as 12-pack of beer in a day or two days out of the week and noted the last time he drank alcohol was over the previous weekend, drinking 3 beers at that time. He denied any current problems with alcohol use or consequences. The examiner commented that the Veteran had a mental disorder, which he assessed as involving signs and symptoms that were transient or mild and which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner commented that dysthymic symptoms and dependent personality traits appeared to have the greatest impact on social relationships and his relationship with his mother. Also, although the Veteran noted having no friends, he indicated having a meaningful long-distance relationship with a girlfriend with whom he hoped to marry. He also reported currently working full-time, noting few problems in this area, and attending a four-year university part-time in addition to his work responsibilities, also reporting no problems. The examiner noted that the Veteran was prescribed medication for depressive symptoms in the past but stopped taking it and there was no report of current or recent treatment for his condition. The examiner found that the mental disorder symptoms were not severe enough to require continuous medication and were severe enough to interfere with occupational and social functioning, noting that the symptoms appeared to affect social functioning but not occupational functioning. In a March 2010 letter, a VA psychiatrist indicated that the Veteran had been evaluated at a VA outpatient mental health clinic and had a diagnosis of major depressive disorder. Symptoms he had endorsed during his visits to the clinic include depressed mood, anxiety, low self-esteem, anhedonia, low energy, and isolation from others/paranoia. He had been seen in clinic on four different visits. At the present time, he was not taking any psychotropic medications and had concerns about trials on other medications due to possible side effects. He had not participated in psychotherapy due to his work schedule. At a July 2010 VA mental health visit, the Veteran reported continued depressed mood, anxiety, and paranoia on and off. He stated that he had low self-esteem. He noted that he was interested in treatment for depression but was afraid to try other medications due to developing side effects to the previous two he had tried. Therapy was recommended to him, but he stated that he could not do this due to his work and school schedule. Mental status examination showed that he was still depressed on and off, had restricted affect, endorsed paranoia related to anxiety and that he had fair insight and good judgment. The treating psychiatrist noted that the Veteran was ambivalent about trying a different medication and was provided with information about two additional medications to consider, sertraline and mirtazapine. Psychotherapy was recommended but the Veteran was not able to commit to it due to work and school schedule. He was agreeable to a follow-up visits in one month to discuss a trial on another antidepressant medication. At an August 2010 VA mental health visit, the Veteran reported that he continued to struggle with anxiety, feeling on edge, having paranoia about people being against him at work or fear he would get fired. He indicated that his mood was low most days with isolating behavior, anhedonia, and low energy. Mental status examination showed an anxious mood, restricted affect and paranoia was endorsed related to anxiety with fair insight and good judgment. Brief supportive therapy was provided by the clinician. In a notice of disagreement dated in July 2010 and received in August 2010, the Veteran indicated that he was ordered by his doctor to stop taking the psychiatric medication that had been prescribed in the past for his depressive symptoms, because it had been increasing his migraine headaches. In an August 2010 letter, a treating VA psychiatrist noted that the Veteran was a patient at a VA mental health clinic and that he had a diagnosis of major depressive disorder. The psychiatrist indicated that during the course of his treatment in the clinic, the Veteran had undergone two medication trials. However, both medications were discontinued as recommended by the psychiatrist due to the Veteran experiencing worsening headaches. Also, the Veteran was not participating in psychotherapy due to his work schedule. At a January 9, 2013 VA psychological evaluation, the diagnosis was dysthymic disorder. The examiner described the Veteran's psychosocial and environmental problems as just ending a relationship with significant other, living with mother because of financial problems, no permanent job, working only temporary low paying job, paranoia when around others, and isolation. The examiner characterized the Veteran's level of symptoms as moderate. The examiner characterized the Veteran's level of impairment as occupational and social impairment with reduced reliability and productivity. The Veteran reported that he recently ended a 5-month relationship with the first woman he was in a relationship with since 2010. He reported the relationship was ended by her because 'he was not stable emotionally, made inappropriate comments, and had non- violent verbal outbursts.' He reported having no friends that he spent time with regularly. Since he had gotten out of the military, he preferred to be alone. He believed it would be difficult for him to maintain relationships because of his desire to be alone and difficulty relating to people because 'they don't understand what I have been through.' The Veteran reported that soon after getting out of the military, he worked for 2 years for the Census. Then, when his term ended, he was unemployed until July 2012. He indicated that he was currently working a temporary job at the airport, getting taxis for people. He reported that he got along with a few co-workers who did the same job he did because of limited contact, but had difficulty getting along with supervisors because he felt they treated him like he was the low man on the totem pole and thus often felt they ignored him when he spoke to them. He indicated that he could, however, communicate his frustrations to others appropriately without becoming violent. In addition to the symptoms shown by the previous VA treatment records, including depressed mood, anxiety, low self-esteem, anhedonia, low energy, isolation from others and paranoia, the Veteran also endorsed flattened affect and showed difficulty maintaining and effective work and social relationships due to increased paranoia and mood disturbances. He reported taking no psychotropic medication due to increased headaches, which was confirmed in a mental health note by a treating psychiatrist. He also denied any other mental health treatment. At the present time he was not taking any psychotropic medications and had concerns about trials on other medications due to possible side effects. He had not participated in psychotherapy due to his work schedule. He reported that he currently drank alcohol in spurts. For example, he reported he drank 2 to 3 beers a day about 3 to 4 times a week for a few weeks followed by a stint of about 2 to 3 weeks of not drinking at all. The most he had consumed in one day was 7 to 8 beers and had been intoxicated approximately 8 times over the last two years. He denied any formal substance abuse treatment. The examiner found that the Veteran's psychiatric symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation of mood, difficulty in establishing and maintaining effective work and social relationships and inability to establish and maintain effective relationships. Additionally, the Veteran was noted to have diminished interest/pleasure in activities and reported weight gain of 40 pounds, fatigue, loss of energy, and hypersomnia. VA treatment records from January and February 2015 show that the Veteran received a brief period of inpatient psychiatric treatment following a suicide attempt. A January 26, 2015 progress note shows that the Veteran was initially seen at the emergency room after he had overdosed on prescription medication. He reported that as a result of the overdose, he had run to the bathroom, needing to vomit, and had fallen en route, injuring his ankle. Regarding, the ankle, he was found to have a lateral tibiotalar dislocation. Regarding the suicide attempt, he reported that he had been unemployed for 9 months and staying with his mother and that due to the pressure of the situation, he intentionally took a bunch of pills. He was initially transferred to a private hospital for treatment because no medical beds were available at VA. Then, after he was medically cleared at Parkland Hospital, he was sent back to the VA for psychiatric treatment. At a January 27, 2015 VA mental health visit, the Veteran reported that he overdosed, then became dizzy and fell and hurt his ankle. His mother was also consulted and confirmed that the Veteran had attempted to harm himself. The Veteran reported that he regretted his behavior and was found to be minimizing suicidal thoughts. He indicated that he had lots of stressors, including recently losing his job. At a January 28, 2015 mental health visit, the Veteran was diagnosed with major depressive disorder and noted to be unemployed, to be having financial difficulties, and to have poor social support. He was admitted to the VA psychiatric unit for further observation and treatment. At a subsequent January 28, 2015 mental health visit, the Veteran clarified that he took more than the prescribed amount of acetaminophen, meloxicam, and atorvastatin, admitting he had wanted to kill himself. However, he indicated that after taking the pills, he immediately regretted the action and that currently, he did not feel suicidal and did not have any plan or intent. He noted that although he had had suicidal ideation in the past, he had never attempted suicide. He did report depressed mood, difficulty sleeping, poor concentration, loss of interest and feelings of hopelessness. A subsequent mental status examination showed pressured speech, labile affect, at times tearful, and circumstantial, and tangential thought process. The Veteran endorsed paranoia about people after him and his insight and judgment were found to be limited. After continued psychiatric treatment and evaluation, along with accompanying kidney function stabilization treatment, the Veteran was discharged from the hospital on February 4, 2015. At an April 2015 VA contract psychological evaluation, the examiner characterized the Veteran's level of psychiatric impairment as occupational and social impairment with deficiencies in most areas. The Veteran reported that at the time of his last examination, he had been in a relationship, but that relationship ended in June 2013. He indicated that he had begun dating his current girlfriend in January 2014. He noted that he was currently living with his girlfriend. He reported the suicide attempt in January 2015, when he fell and broke his ankle. He indicated that after this, his girlfriend, who previously worked as a nurse, had him move in with her so she could help care for him. The Veteran reported that he generally got along with others and was friendly but stated that he did not open up very much because he had 'trust issues.' The Veteran reported that he had begun a job working as an attendant and doing security checks at the airport in January 2013. He indicated that while working there, he felt discriminated against and harassed due to his accent and his age. He noted that he was passed over for promotion three times and since then had felt that people were plotting against him. He reported that he eventually resigned this position in March 2014. He also reported that he then got a job through a job fair as a car salesman but as he had never sold cars before, he was eventually fired, and he had not worked since May 2014. The Veteran indicated that he had not pursued any higher education since his last evaluation and reported that he had graduated from college in May 2012. Regarding the suicide attempt in January 2015, the Veteran noted his inpatient psychiatric treatment at the VA Hospital from January 27, 2015 until February 4, 2015. He also indicated that he had surgery on his ankle during this time and was on IV treatment for kidney problems stemming from his overdose. He noted that he still could not put any weight on his ankle and had to use a wheelchair. He also reported that he had been unable to work since his overdose. He noted that he was not currently receiving any therapy but had an upcoming appointment on the 14th of April with a psychiatrist. He indicated that he was currently taking prescribed psychiatric medication in the form of Sertraline and Trazodone, along with a variety of pain medications for his ankle and his headaches. The Veteran reported that he had stopped drinking in July 2014. The VA contract examiner found that the Veteran exhibited symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and persistent delusions and hallucinations. The examiner commented that the Veteran was very cooperative and talkative, was oriented to all spheres and that there was no evidence of any hallucinations, delusions or thought disorder, although he claimed to experience delusions of persecution (which was the basis for the finding that he experienced "persistent delusions and hallucinations"). When asked if he felt he was doing better, worse or about the same since his last examination, the Veteran reported that he was doing worse. He noted that he felt hopeless, got scared easily and felt everyone was against him and was talking about him. He also stated that he got irritated easily and as a result, he was isolating himself more, even to the point of having less contact with his family in overseas. The Veteran reported that his suicide attempt had made him think a lot and he indicated that he did not currently want to hurt himself. He did admit to feeling hopeless but had no interest in going through that experience again. The examiner felt that the Veteran should be considered as an increased but not current, imminent risk for suicide. The Veteran reported that he was aware of the VA crisis line being available for assistance should he experience such feelings and that he had access to the number. At a December 2015 VA contract psychological evaluation, the examiner characterized the Veteran's level of psychiatric impairment as occupational and social impairment with deficiencies in most areas. The Veteran reported that he was currently divorced. He stated that he did have a serious dating relationship since the last exam, noting that 'it was really good, full of support, emotional, helping each other.' He attributed the end of that relationship to, 'I have feelings for that person, but I think she wanted probably a little more.' He added that he had 'just lost interest in everything, not eating, barely eating, and I know I need to lose some weight but just loss of interest... just making it like I'm stuck without trying to make a move to advance (the relationship) or something.' Regarding his family relationships, he stated he lived with his mother, which he did not think was healthy. He noted that she had a strong personality and mood swings that had an impact with how he isolated himself and made him bottle things up. He stated that his father and siblings lived overseas and contact with them was very rare. He denied having any children or any friendships stating, 'The only friend I had was from my last relationship, her family. Other than that, just friends that were in the military with me but they're in other states. But it's hard to get in touch with them because I'm depressed.' The Veteran reported that he was currently unemployed. He stated that he had last worked for 2 months until Aug 2015 as an on-site supervisor for a staffing company. He noted that he developed a lot of anxiety and panic attacks because he could not get good sleep. He indicated that his employer would call him in the middle of the night when he was sleeping to try and to get him to come to work. Consequently, he developed worsening anxiety. He stated that he was also limited physically and that he was fired as a result of these factors. The Veteran described his mental health as being scared of everything and not knowing what he should do. He felt like all the efforts he had made in the past in terms of education were getting him nowhere because he could not get a job. He indicated that he had just been isolating himself. He stated that he also experienced a lot of pressure from his mother to move out. He noted that she even called the police one time, asking them to order him to leave but the police officer informed her that they could not do this. He described his mood as a lot of anxiety and panic. He felt like he was afraid of the future. He also endorsed subjective depressed mood, feeling that he had failed at everything he had done and feeling helpless. Along with this, he reported difficulty with initiating sleep, noting that anxious thoughts appeared to be the main source of interference. Additionally, he reported poor energy, amotivation, and anhedonia. He indicated that he felt tired and did not feel like doing anything, just wanting to lay in bed. However, this just made his symptoms worse because he was constantly thinking, and he did not see a way out of his situation. He described his appetite as having declined. He also described panic attacks that were recently occurring every day and having a feeling that everything was against him or everyone was going to get him. The Veteran reported he attempted to overdose on medication related to thoughts of suicide in January 2015 and was hospitalized for 9 days. He noted that 'it made me realize that it was a mistake I made, that life is worth living. It's just that I still feel that I'm stuck, like I'm hopeless. I got depressed because I was unemployed, feeling frustrated, or rejection that I haven't performed at my jobs like I did in the military.' The Veteran denied suicidal ideation since the overdose. He reported taking his medication regularly (amitriptyline, risperidone, and sertraline), stating, 'they help a little bit, but I still feel depressed.' He stated he was not currently engaged in psychotherapy. He reported that his depressed mood had subjectively worsened since the last exam. He denied symptoms consistent with mania/hypomania or with psychosis. The Veteran reported that he had stopped drinking about 2 years previously. The examiner noted psychiatric symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting and inability to establish and maintain effective relationships. Mental status examination showed good grooming and hygiene. The Veteran's posture and gait were unremarkable. He maintained good eye contact. Mild psychomotor agitation was observed (e.g. fidgeting). Rate, tone, and prosody of speech were within normal limits and speech was coherent. There was no evidence of delusions or disorganized behavior. He denied hallucinations, suicidal, or homicidal ideation or intent. He was cooperative, his mood appeared depressed and anxious, his affect was congruent with the topic of conversation (e.g. tearful), and his gross cognition appeared intact. The examiner commented that the Veteran was likely to be moderately to severely impaired in a work environment that is fast-paced, complex, and/or frequently changing and that depression symptoms such as impaired concentration, low energy, and slowed reactions would make it very difficult for him to function adequately in an environment that required a lot of mental processing. The Veteran was likely to be moderately impaired in a work environment that required a rigid adherence to a set work schedule (e.g. scheduled work hours) and depression symptoms would likely cause excessive absenteeism, tardiness, and need to leave work early due to depressed mood, low energy, low motivation, etc. VA treatment records from March to April 2016 show that the Veteran was again hospitalized on March 6, 2016 at Parkland Hospital following a suicide attempt involving an overdose of prescription medication. He required significant medical treatment, including intubation. After subsequent extubation, he was found stable for transfer to VA inpatient care with transfer occurring on March 30, 2016. He subsequently received psychiatric treatment and was discharged on April 4, 2016. In the April 2017 decision and remand, the Board noted that the Veteran reported the date that had last worked full time as March 24, 2014 and that he had left his last job because of his service-connected disabilities. The Board found credible the Veteran's lay statement concerning the impact of his service-connected disabilities and determined that they likely precluded him from obtaining and maintaining gainful employment beginning March 24, 2014. The Board noted that the Veteran was significantly limited by both his dysthymic disorder and his physical disabilities involving the right and left knees. At a November 2021 VA contract psychological evaluation, the examiner found that the Veteran's level of psychiatric symptomatology was best characterized by occupational and social impairment with occasional 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. The Veteran reported no participation in mental health treatment since early 2016. It was noted that the Veteran was currently residing overseas alone with his dogs, that he had he had lived in this setting since July 2016, and had moved after his second suicide attempt in March 2016 to be close to family in order to receive needed emotional support. He reported housing instability in that he had moved several times and interpersonal challenges including altercations with his stepmother and tense situations involving his mother. He indicated that he had intact relationships with various other family members and that there were a few extended family members with whom he got along. He noted that he had a female friend who lived in Mexico with whom he communicated via email and facetime calls and was looking forward to seeing her in person. He estimated that he had two close friendships and several family members who were supportive. When asked about social supports and/or activities, he indicated that prior to the COVID 19 pandemic, he was volunteering as an English tutor for high school students. He reported that he typically went out to eat twice a month, either alone or with a few family members. The Veteran estimated he had devoted up to 30 hours a week tutoring high school students. He reported that after COVID he began volunteering in a different capacity, trying to do humanitarian efforts 2 to 3 days per week, mostly on his own, involving food delivery. He reported acting in this manner from June 2020 to July 2021 before ceasing this activity. However, he became concerned for his safety due to violence occurring in the area where he was volunteering. The examiner found that the Veteran's symptoms included depressed mood, anxiety, suspiciousness, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or work-like setting and suicidal ideation. Mental status examination showed that the Veteran appeared appropriately dressed for the climate and setting. Grooming and hygiene appeared intact. Speech was fluent in English with normal volume and normal rate. Articulation was normal. No word finding problems were observed. Energy level was average. Mood was stable. Affect was euthymic, appropriate, and congruent with topics of discussion. Thought processes were logical and goal directed. No unusual perceptual disturbances were observed or reported. There was no acute indication of suicidal or homicidal ideation or intent. The Veteran denied active suicidal ideation or any plans or intent to harm himself. He expressed future orientation and endorsed protective factors. He was encouraged to discuss any symptoms with his provider and was equipped with the VA crisis line number. Rating in excess of 30 percent prior to January 9, 2013. Prior to January 9, 2013, the Veteran is currently assigned a 30 percent rating for his service-connected psychiatric disability. Resolving any reasonable doubt in the Veteran's favor, the Board finds that prior to this date, the Veteran's psychiatric disability was best characterized as occupational and social impairment with reduced reliability and productivity. Notably, the Veteran was shown to have significant difficulties in social and occupational functioning. In this regard, at the October 2009 VA mental health visit, he was noted to have continued difficulty with mood swings, feeling sad most of the time, isolating from others, not participating in activities, experiencing low energy and motivation and having interpersonal difficulties with his mother. He was also noted to have restricted affect. Also, in the March 2010 letter, the VA treating psychiatrist noted symptoms of depressed mood, anxiety, low self-esteem, anhedonia, low energy, and isolation from others/paranoia. Similarly, at the August 2010 VA mental health visit, the Veteran reported that he continued to struggle with anxiety, feeling on edge and having paranoia related to anxiety, specifically that people were against him at work and/or fear that he would get fired. He also endorsed low mood most days with isolating behavior, anhedonia, and low energy and was again noted to have restricted affect. Additionally, at the June 2010 VA contract examination, the Veteran reported that he experienced a depressed mood most of the day, for more days than not, over at least the past 2 years with accompanying symptoms/problems of losing interest in things, thinking that people do not have his best interest in mind, thinking that people at work were trying to get him in trouble, significant isolative behavior, which involved him not showering for 2 to 3 days at a time, overeating, hypersomnia, low energy or fatigue, low self-esteem, difficulty making decisions, and feelings of hopelessness. Additionally, he reported that he did not have any friends locally as he had problems with trust issues, and had problems with his relationship with his mother, with whom he lived, feeling significant irritability toward her. Regarding sleep impairment, the Veteran endorsed hypersomnia approximately 3 times per week, noting that he would sleep 12 to 14 hours in a day, taking multiple naps. The Board finds that this symptomatology is reasonably consistent with occupational and social impairment with reduced reliability and productivity due to symptoms, which include flattened (e.g. restricted) affect, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The Board is cognizant that the June 2010 VA contract examiner characterized the Veteran's overall level of impairment due to his service-connected psychiatric disorder as occupational and social impairment with signs and symptoms that were transient or mild and which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. However, for the period prior to January 9, 2013, the Board must place at least equal probative weight on the findings of the contemporaneous VA treatment records. Notably, the June 2010 examiner concluded that the Veteran's description of work limitations appeared more related to dependent personality traits (which it appears the examiner did not deem to be part of the Veteran's service-connected psychiatric disability) than due to symptomatology, including depression, from his service-connected psychiatric disability. However, the contemporaneous VA treatment records did not draw this distinction, nor did subsequent compensation and pension examinations, including the January 2013 examination. Additionally, none of the subsequent VA treatment records or the subsequent VA contract examinations did so either. Consequently, the weight of the evidence is against finding that separate non-service-connected dependent personality traits caused any part of the Veteran's occupational impairment attributable to psychiatric disability. See e.g. Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant's favor and the symptoms in question must be attributed to the service-connected disability). Also, the June 2010 VA contract examiner did not find that the Veteran had any anxiety, which is inconsistent with the contemporaneous VA treatment records and the subsequent examinations, which show consistent, chronic anxiety, including resultant paranoia concerning co-workers and fear of getting fired. The Board finds that this level of symptomatology, coupled with the Veteran's numerous depressive symptoms, including the isolative behavior, is reasonably indicative of occupational impairment with reduced reliability and productivity. Additionally, the June 2010 VA contract examiner appeared to find that the Veteran had some level of significant social functioning based on him maintaining a long-distance relationship with a girlfriend. However, the Veteran reported that this relationship entailed only phone contact every two weeks without any indication of any in-person visits. Also, at the January 2013 VA contract examination, the Veteran appeared to report that this relationship had ended sometime later in 2010, along with reporting that a 5 month relationship with a subsequent girlfriend had ended because he was 'not emotionally stable, made inappropriate comments and had non-violent verbal outbursts.' Thus, this evidence tends to indicate that prior to January 9, 2013, the Veteran was generally isolative with no local friends (and with no indication of significant non-local friendships aside from the aforementioned limited relationships with girlfriends, which were not able to be sustained), and a difficult relationship with his mother. Accordingly, he is reasonably shown to have experienced social impairment with reduced reliability and productivity. Moreover, at the June 2010 VA contract examination, the Veteran reported that in conjunction with his isolative behavior, he often would not shower for 2 or 3 days, which tends to indicate that his routine self-care was not normal and thus, not compatible with assignment of a lower, 30 percent rating. Accordingly, considering the limitations of the June 2010 VA contract examiner's findings in conjunction with the findings of the contemporaneous VA treatment records and the history noted by the January 9, 2013 examination discussed above, and resolving reasonable doubt in the Veteran's favor, a higher, 50 percent rating will be assigned for the Veteran's service-connected psychiatric disability for the entire appeal period prior to January 9, 2013. The Board finds that a higher, 70 percent rating is not warranted for this period as the Veteran's psychiatric disability is not shown to have resulted in occupational and social impairment with deficiencies in most areas. In this regard, neither the June 2010 VA contract examination nor the contemporaneous VA treatment records show this level of severe impairment. More specifically, the Veteran was shown to be attending school full time during this period without any significant problems noted, so was not shown to have a deficiency in school. Also, mental status examinations during this time frame generally assessed the Veteran's judgment, as good (See e.g. reports of October 2009, November 2009, July 2010, and August 2010 VA mental health visits) and the Veteran was not otherwise found to have a deficiency in judgment. Additionally, the Veteran's thinking was generally assessed as sound with mental status examinations consistently showing thought processes that were logical and goal-directed and thought content that was generally devoid of suicidal or homicidal ideation or auditory or visual hallucinations. (See e.g. reports of October 2009, November 2009, July 2010, and August 2010 VA mental health visits). Also, the June 2010 VA contract examiner found that the Veteran did not have any impairment in thought processes and communication, did not have any delusions or hallucinations, and the Veteran was not otherwise shown to have significant impairment in thought processes or content. Consequently, he was not shown to have a deficiency in thinking. Additionally, despite having some challenges with his relationship with his mother, the evidence shows that the Veteran was able to coexist with her effectively enough to live in the same household without any showing of severe discord. At the December 2015 examination, he reported that she did call the police on one occasion and ask them to evict him from the home but there is no indication or assertion that this took place prior to January 9, 2013. In this regard, the Veteran did not report this incident at either the January 9, 2013 or April 2015 examinations. Also, the Veteran reported during the June 2010 VA examination that he did not have any problems with relationships with other family members. Thus, he is not shown to have a deficiency in family relations consistent with the criteria for assignment of a higher 70 percent rating. Accordingly, even though there were significant impairments in the areas of mood and work, and even assuming that such impairment amounted to a deficiency in each of these areas, the Veteran's psychiatric impairment was still not shown to result in deficiencies in most areas. Also prior to January 9, 2013, the Veteran was generally not shown to have symptomatology compatible with assignment of a higher, 70 percent rating. He was not shown to exhibit obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech, or spatial disorientation. He was also not shown to have near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. In this regard, he did have significant depression and anxiety but was still able to function independently, appropriately, and effectively at work and school and also in the home environment, including basic co-existence with his mother. Additionally, while he did report sometimes not showering for 2 to 3 days, overall, he was not shown to have neglected his personal appearance and hygiene to the severe level compatible with assignment of a 70 percent rating. In this regard, there is no indication that the Veteran was found to have any problems with appearance or hygiene in the work setting and signs of significant neglect of personal hygiene or appearance were not noted during any mental health visits or during the June 2010 VA contract examination. Additionally, while the Veteran did report significant irritability, there is no indication that he ever acted out in a violent manner. Consequently, he was not shown to have impaired impulse control, including unprovoked irritability with periods of violence. Further, although the Veteran clearly manifested difficulty in establishing and maintaining effective relationships, he was not shown to have an inability to establish and maintain them. In this regard, he is shown to have maintained some level of manageable relationships with co-workers and with his mother. At the June 2010 VA contract examination, the Veteran was noted to have had some history of suicidal ideation with the last instance of actual suicidal thinking approximately a year previously and an instance approximately one month previous to the examination where he wished he were dead. Also, the evidence reasonably indicates that the Veteran's constellation of symptoms gave him difficulty in adapting to stressful circumstances (including work or a worklike setting). However, despite this symptomatology, which can be compatible with a higher, 70 percent rating, overall, as explained above, his psychiatric symptoms were not shown to result in deficiencies in most areas. Accordingly, prior to January 9, 2013, a higher, 70 percent rating for the Veteran's service-connected psychiatric disability was not warranted. Rating in excess of 50 percent from January 9, 2013 through March 24, 2014. For the period from January 9, 2013 to March 24, 2014, the Veteran has already been assigned a 50 percent rating and the Board finds that the criteria are not met for assigning a higher, 70 percent rating. In this regard, the January 2013 VA examiner specifically found that the Veteran's psychiatric symptomatology was best characterized by occupational and social impairment with reduced reliability and productivity, consistent with the existing assigned 50 percent rating, noting that overall, the Veteran's symptoms were moderate in degree. Also, similar to the period prior to January 9, 2013, during this subsequent period, the Veteran's psychiatric symptomatology was not shown to result in deficiencies in most areas. In this regard, he was not shown to have any deficiency in school functioning. Also, a the January 9, 2013 VA examination, the examiner did not find the Veteran exhibited any symptoms compatible with significantly impaired thought content or thought processes such as circumstantial, circumlocutory or stereotyped speech, speech intermittently illogical, obscure or irrelevant, difficulty in understanding complex commands, impaired abstract thinking, gross impairment in thought processes or communication, or disorientation to time or place and the Veteran did not report experiencing any such symptoms. The examiner did find that the Veteran exhibited mild memory loss, such as forgetting names, directions, or recent events, but this alone is not indicative in a deficiency in thinking under the criteria for assignment of a higher rating (i.e. mild memory loss is a symptom noted in the criteria to be specifically compatible with the existing 50 percent rating). There are also no other findings or reports of any significant impairment in thought processes or thought content during the period from January 9, 2013 to March 24, 2014. Consequently, the Veteran was not shown to exhibit a deficiency in thinking. Similarly, at the January 9, 2013 examination, the Veteran was not found to have any significant impairment in judgment with the examiner indicating that impaired judgment was specially not shown. There are also no other findings or reports of any significant impairment in judgment during the period from January 9, 2013 to March 24, 2014. Consequently, the Veteran was not shown to have a deficiency in judgment. Moreover, despite having some challenges with his relationship with his mother, the January 9, 2013 VA examination indicates that the Veteran continued to be coexist with her effectively enough to live in the same household without any showing of severe discord. Also, as noted above, there is no indication that the incident where his mother called the police and asked them to evict him, occurred during this time frame. Additionally, there is no indication from the January 9, 2013 VA examination that the Veteran was having any difficulty with other family members. Consequently, he is not shown to have had a deficiency in family relations during this time frame. Similar to the period prior to January 9, 2013, the Veteran was shown to have a deficiency in mood and did have some difficulty in occupational functioning that may have constituted a deficiency in work. However, because he did not have deficiencies in other areas, he was not shown to have deficiencies in most areas. Also, from January 9, 2013 to March 24, 2014, the Veteran was generally not shown to have symptomatology compatible with assignment of a higher, 70 percent rating. Notably, the January 9, 2013 VA examiner specifically found that he did not exhibit obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; spatial disorientation; 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; or neglect of personal appearance and hygiene, nor did the Veteran report any such symptomatology during the examination. There are also no other findings of reports during this time-frame indicative of this symptomatology. The January 9, 2013 VA examiner did include a finding that the Veteran had an inability to establish and maintain effective relationships, a symptom, which can be compatible with assignment of a higher, 70 percent rating. Also, although the Board cannot discern any specific finding or complaint of suicidal ideation during this time frame, with the January 9, 2013 examiner specifically finding that the Veteran did not exhibit this symptom, given the Veteran's earlier and later mental health history, it is possible that some such ideation was present during this period. However, given that overall, the Veteran's psychiatric symptomatology was not shown to result in deficiencies in most areas, with the January 9, 2013 examiner specifically finding that this higher level of impairment was not established, the evidence does not provide a basis for awarding a higher, 70 percent rating for this time frame. Accordingly, considering all applicable criteria, a rating in excess of 50 percent for the psychiatric disability is not warranted from January 9, 2013 through March 24, 2014. Rating in excess of 50 percent from March 24, 2014 to December 4, 2015. As indicated above, the Veteran is shown to have had a suicide attempt in January 2015, involving an overdose of prescription medication with subsequent hospitalization. This level of suicidal ideation is compatible with a higher, 70 percent rating. The January 2015 VA treatment records show that the suicide attempt occurred after approximately a nine-month period of severe depression with primary stressors of unemployment/inability to secure work and stress involving the Veteran's relationship with his mother. The beginning of this noted nine month period is reasonably shown to be March 24, 2014, the effective date of the TDIU award granted to the Veteran by the April 2017 Board decision based on him being adjudicated as unable to secure or follow a substantially gainful occupation due to service-connected disability, including the significant impairment resulting from the service-connected psychiatric disability. Given that the Veteran is reasonably shown to have had the severe level of impairment beginning as early as March 24, 2014, which ultimately led to the suicide attempt in January 2015; given that he has been shown to be unable to secure or follow a substantially gainful occupation as of that date, in large part due to his service-connected psychiatric disability; and resolving any reasonable doubt in his favor, a 70 percent rating based on occupational and social impairment with deficiencies in most areas is warranted effective March 24, 2014. A higher, 100 percent rating is not warranted as the Veteran is not shown to have exhibited total occupational and social impairment. Notably, the Veteran did have the suicide attempt in January 2015. However, this was a one-time occurrence within this rating period, which was not followed by subsequent suicidal ideation. Thus, the Veteran was not shown to be a persistent danger to himself, a symptom, which would be compatible with a higher, 100 percent rating. Also, to the extent that any other symptomatology was present during the hospitalization that might be compatible with a higher, 100 percent rating, the Veteran was not shown to exhibit total or near total social impairment during this period, as he continued to maintain an ongoing relationship with his mother and his girlfriend, including during the hospitalization. Thus, in the absence of anywhere near total social impairment, the Board is not able to find that the Veteran's level of symptomatology more nearly approximated total occupational and social impairment and a higher, 100 percent rating is not warranted. Rating in excess of 70 percent from December 4, 2015. From December 4, 2015, a 70 percent rating is already in place for the Veteran's service-connected psychiatric disorder. Also, a higher, 100 percent rating is not warranted as the Veteran is not shown to have exhibited total occupational and social impairment. Notably, the Veteran did have the serious second suicide attempt in March 2016 for which he was hospitalized, initially for medical treatment, and then for psychiatric treatment. While this does obviously show a severe level of impairment, it is a second isolated occurrence with no subsequent suicidal ideation shown to have followed it. Thus, the Veteran was not shown to be a persistent danger to himself, a symptom, which would be compatible with a higher, 100 percent rating. Also, to the extent that any other symptomatology was present during the hospitalization that might be compatible with a higher, 100 percent rating, the Veteran was not shown to exhibit total or near total social impairment during this period, as even at the time of the suicide attempt, he continued to maintain an ongoing relationship with his mother with whom he was living at the time. Additionally, he is shown to have maintained ongoing relationships with family, subsequently moving back to live in that country soon after he was released from the hospital. Consequently, in the absence of total or near total social impairment, the Board is not able to find that the Veteran was totally occupationally and socially impaired and a higher, 100 percent rating is not warranted from December 4, 2015. The Board also notes that the November 2021 VA contract examination tends to indicate that the Veteran's service-connected psychiatric disability lessened in severity after he moved overseas. However, the Board will not disturb the existing 70 percent rating already assigned. In sum, considering all pertinent criteria, a 50 percent but no higher rating is warranted for the Veteran's service-connected psychiatric disorder for the entire appeal period prior to March 24, 2014 and a 70 percent but no higher rating is warranted for the period from March 24, 2014. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.