Citation Nr: 22018659 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-19 802 DATE: March 30, 2022 ORDER Entitlement to an initial rating in excess of 30 percent for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and generalized anxiety, is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's acquired psychiatric disability was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for an initial rating higher than 30 percent for service-connected acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1154 (a), 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2007 through June 2013. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from April 2018 and June 2020 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the RO denied the Veteran's claim for entitlement to service connection for an acquired psychiatric disability. The Veteran submitted a timely appeal, and the claim was again denied in a December 2016 Statement of the Case (SOC). The Veteran submitted a timely substantive appeal, which contested only the denial of entitlement to service connection for an acquired psychiatric disability. While the appeal was pending at the Board, the RO granted service connection for an acquired psychiatric disability in an April 2018 rating decision. This grant of service connection is considered a full grant of the benefits sought on appeal. The Veteran did not submit a substantive appeal for the April 2018 rating decision. Despite the aforementioned, in December 2021, the Board improperly took jurisdiction of the issue of increased rating claim for the Veteran's service-connected acquired psychiatric disability and issued a remand for further development. The appeal has since returned to the Board. In light of the previous December 2021 Board action, by consistently treating a claim as if it is part of a timely filed substantive appeal, the Board finds that it led the Veteran to believe that the issue of entitlement to an increased rating for an acquired psychiatric disability was properly on appeal. As such, VA effectively waived all objections to the procedural adequacy of the appeal with respect to this issue. See Percy v. Shinseki, 23 Vet.App. 37 (2009). The matter is adjudicated below. Entitlement to an initial rating in excess of 30 percent for an acquired psychiatric disability is denied. By way of procedural history, the Veteran was granted service connection for an acquired psychiatric disability in an April 2018 rating decision and assigned a 30 percent rating, effective August 31, 2015. In a July 2019 rating decision, the RO reduced the Veteran's 30 percent rating to 10 percent, effective October 1, 2019. In a January 2022 rating decision, the Veteran's 30 percent rating for his acquired psychiatric disability was restored, effective October 1, 2019. Thus, the Veteran is currently assigned a 30 percent rating for his acquired psychiatric disability throughout the period at issue under DC9411. The service-connected disability is "other specified trauma and stressor-related disorder, post traumatic stress disorder, and generalized anxiety disorder." 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 (2018). 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. The Veteran's service-connected acquired psychiatric disorder is rated under 38 C.F.R. §§ 4.130, Code 9400. Except for eating disorders, all psychiatric disabilities are evaluated pursuant to General Rating Formula for Mental Disorders. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Therefore, one rating for the Veteran's psychiatric picture is appropriate. Under Diagnostic Code 9400, a 30 percent disability evaluation is contemplated for 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); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The next highest rating is 50 percent. This rating is contemplated for 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. 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, 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. To be assigned a particular rating, a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The key element for a rating under the General Formula for Mental Disorders is the degree of social and occupational impairment caused by those symptoms. Further, the United States Court of Appeals for the Federal Circuit has acknowledged the "symptom-driven nature" of the General Rating Formula and that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. Turning to the evidence of record, in an October 2015 VA psychological examination, the Veteran revealed that he had good family relationships. Specifically, he had good relationships with his wife, children, and brother. He also reported that he had a couple of friends in Minnesota. At the time, he was attending college for roughly two years and planned to graduate with a degree in computer networking at the end of the year. He maintained all "A" grades in his college courses. Concerning employment, he had plans to obtain employment in the IT industry but was not working at the time. Post-service, he denied any complaints or reprimands regarding his work performance. In regard to his current mental symptoms, he admitted to lacking the patience to deal with people and irritable. He also admitted to having hypervigilance and anger outbursts. Other notable symptoms included problems with concentration, sleep disturbance, and depressed moods. He reported that he was unhappy all the time. On examination, the examiner found that the Veteran's social skills and insight was appropriate. The Veteran described his concentration as "poor". He also noted he had problems with being in large groups. He was better with hands on tasks and had decent motivation, He denied suicidal and homicidal ideation or feelings of helplessness, worthlessness, or hopelessness. The examiner determined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning. In December 2015, VA treatment notes document the Veteran's reported that he had only one angry episode over the past week and was able to control his anger. In January 2017, he shared that he started a second job and had increased depressive and anxiety symptoms in light of marital and financial strain. On examination, he was pleasant, attentive, and cooperative. He reported that his mood was better and denied suicidal ot homicidal ideation. It was also documented that he worked as an IT technician at a local hospital and as a part-time stocker at a grocery store. By September 2017, the Veteran denied depressive symptoms or excessive anxiety. He endorsed that his sleep was restful and denied recent nightmares. His energy was good and concentration intact, He also denied irritability, psychotic or manic symptoms, and denied suicidal or homicidal ideation. In April 2018, the Veteran submitted to a second psychiatric VA examination. He reported that he was still married, and his marriage was more stable than in 2015. The Veteran reported that he did not have much of a social life and was busy most of time with work and school. He reported that he was working in IT, which he enjoyed. He had been employed in IT since he graduated from college in 2015. He was again in college for a four-year degree with plans to graduate at the end of the year. He reported that he had no history of suicidal attempts or psychiatric hospitalization. The Veteran endorsed having disturbing thoughts about his service once every two months, He was not having nightmares as often. He had panic attacks once or twice a year. He avoided large gatherings because he lost interest in them. He was able to sleep well at night 70 percent of time. Lastly, he rarely had anger outbursts. The examiner opined that the Veteran's symptoms had improved to the point where he had no mental diagnosis. In November 2019, the Veteran reported that he was doing much better with an 80 percent improvement with symptoms. He admitted that his mood would "dip" for a couple of hours, but his anxiety was improved. He had occasional nightmares. His motivation was improved and concentration "ok". He denied homicidal and suicidal ideation. In May 2020, the Veteran's wife submitted correspondence noting that the Veteran has panic attacks weekly. The Veteran also had problems with irritability and anger and has thrown items at household members and yelled constantly. He also had difficulty focusing on projects around the house. His wife added that the Veteran has chronic sleep impairment and mild memory impairment. Treatment notes in May 2020 documented the Veteran's report that he had one episode of a panic attack while watching TV, which lasted about 90 minutes. Otherwise, he had no problematic anxiety symptoms or depressive symptoms. On examination, his concentration was intact, his mood and energy were good, and he denied irritability, suicidal ideation, and homicidal ideation. At a June 2020 VA examination, the Veteran reported that he had been attending marriage counseling, which he attributed to problems with his irritability and throwing things. He had maintained the same job for three years but admitted to anxiety attacks that sometimes happened at work. He described these moments as having muscle tension with sweating. He did not leave work during, or as a result of these episodes. He informed that he had to work with a lot of people in his current role. He reported that he had no suicidal attempts but admitted to suicidal thoughts. He described recent suicidal thoughts two weeks prior after an argument with his wife with a plan to drive his truck into a tree. He reported that he did not go through with it because of his wife and kids. He reported that his panic attacks were returning and happening weekly. Overall, his symptoms had little effect of his work. He was able to have a loving relationship with his wife and children. The examiner determined that the Veteran had occupational and social impairment due to mild and transient symptoms which decrease work efficiency and ability to perform occupational tasks during periods of significant stress, or symptoms controlled by medication. Treatment notes in November 2021 document that the Veteran was doing well with no depression symptoms and rare anxiety symptoms. When these symptoms were present, they were not problematic. He reported restful sleep and intact concentration. He denied suicidal ideation. At the time, he was preparing to have an extended weekend with his in-laws. Having carefully considered the record as a whole, the Board finds that the Veteran's acquired psychiatric disability is appropriately evaluated as 30 percent disabling throughout the period on appeal. Although the Veteran has reported sleep impairment, panic attacks, anger, mild memory loss, irritability, problems with large groups, and concentration difficulty, the Veteran maintained the ability to perform occupational and social tasks and activities sufficiently and satisfactorily. This is most evident in the Veteran's ability to attend college and complete college courses with all A grades, obtain and maintain employment within the IT field, and have loving relationships with family and friends. Participation in such activities and level of achievement, highly suggest that the Veteran, despite his limiting mental symptoms, retains the ability to concentrate well enough to learn and apply detailed information in a work environment and has adequate social skills to sustain personal and work relationships. In so finding, the Board does not ignore that the Veteran noted having suicidal thoughts once, at his June 2020 VA examination, As such, the Board has considered the ruling in Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Here, the Court found that suicidal ideation is only listed as a symptom in the criteria for a 70 percent disability rating. Id. Thus, the Court found "the language of the regulation indicates that the presence of suicidal ideation, alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Id. The evaluation of mental disorders requires consideration of the effects of each of the veteran's mental symptoms on his or her social and occupational situation to determine the severity of the symptom. Id. Put differently, although suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas, it does not follow that suicidal ideation automatically warrants a 70 percent disability rating. The focus is on whether those suicidal ideations are of the severity and frequency to cause occupational and social impairment with deficiencies in most areas. Here, both the medical and lay evidence support that the Veteran's symptoms during this timeframe were of a similar type, duration, and severity of those associated with a 30 percent rating. Although the Veteran reported suicidal thoughts at the June 2020 VA examination, he more often denied the presence of suicidal thoughts at psychological assessments throughout the period on appeal. More importantly, there is no evidence that the mere presence of suicidal thoughts impaired the Veteran's occupational and social functioning beyond the limitations already accounted for in the assignment of his 30 percent rating. Despite the report of suicidal thoughts, he denied any attempts, still maintained employment without evidence of significant deficits in performance and was able to maintain good relationships with his wife and children. Notably, treatment notes dated subsequent to the Veteran's June 2020 report of suicidal thoughts documented his report of having no depressive symptoms and his denial of suicidal symptoms. Thus, his reporting of suicidal thoughts, with nothing more, does not rise to the level of frequency and severity contemplated by the higher ratings. The majority of the Veteran's symptoms are described as anxiety, panic attacks, sleep disturbance, panic attack and mild memory loss and are of similar frequency and severity as those contemplated by the 30 percent rating for an acquired psychiatric disorder. The Board also finds that the Veteran's service-connected acquired psychiatric disorder does not meet the criteria for a disability rating of 50 percent at any time during the appellate period. To obtain a 50 percent rating, the evidence must show that his acquired psychiatric disability was manifested by symptoms which are most consistent with occupational and social impairment with reduced reliability and productivity. In reviewing the medical evidence of record, the Board notes that VA examiners of record have consistently determined that the Veteran maintained greater occupational and social functioning than those associated with a 50 percent or higher rating. The Board finds that the VA examiners' opinions are highly probative. Additionally, the Board again notes that the Veteran was able to obtain "A" grades in his college courses, work successfully in the IT industry, and sustain fairly good family relationships. Simply put, there is no evidence supporting that the Veteran had persistent occupational and social functioning with reduced reliability and productivity at any time during the period on appeal. Additionally, the Board has considered that the Veteran has alleged that the April 2018 VA examiner was not "well done". He explained that he had only been asked a few questions before his benefits were cut. The Board notes that the Veteran's benefits have been restored to levels assessed prior to the April 2018 VA examination. Further, the decision herein relies on a totality of the entire record, including lay statements and treatment notes, rather than a single VA examination. In sum, the weight of the evidence persuasively supports that the Veteran's acquired psychiatric disability symptoms more nearly approximate those associated with a 30 percent rating. As such, the Veteran's claim for an increased rating is denied. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.