Citation Nr: 22019130
Decision Date: 03/31/22	Archive Date: 03/31/22

DOCKET NO. 10-11 465
DATE: March 31, 2022

ORDER

The appeal as to whether the Veteran is entitled to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been withdrawn and is dismissed.

Entitlement to a disability rating in excess of 30 percent for a service connected acquired psychiatric disorder prior to July 2, 2021, is denied.

REMAND

Entitlement to a disability rating in excess of 30 percent for a service connected acquired psychiatric disorder after July 2, 2021, is remanded.

FINDINGS OF FACT

1. Prior to the promulgation of a decision in the appeal, the Veteran indicated his desire to withdraw his appeal as to entitlement to TDIU.

2. Prior to July 2, 2021, the Veteran's acquired psychiatric disorder manifested as 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).

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal of entitlement to TDIU are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for a disability rating in excess of 30 percent for an acquired psychiatric disorder prior to July 2, 2021, are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1997 to June 1997.

This appeal is before the Board of Veterans' Appeals (Board) from a December 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office and in December 2015 and February 2017 the Veteran's claims were previously remanded by the Board to afford the Veteran a hearing which occurred in November 2021 with the undersign Veteran's Law Judge (VLJ). A transcript of  that hearing is associated with the claims file and, for the reasons described herein, the Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998).

WITHDRAWN

1. TDIU

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205.

The November 2021 Board hearing transcript reflects that the Veteran stated he was withdrawing the TDIU claim because he was employed. Based on the above statement, the Board finds this statement represents sufficient evidence of the Veteran's desire to withdraw his appeal. Accordingly, the appeal for TDIU is dismissed as withdrawn. 

INCREASED RATING

2. Acquired Psychiatric Disorder Prior to July 2, 2021

The Veteran seeks entitlement to a disability rating in excess of 30 percent for his acquired psychiatric disorder.

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The Veteran's PTSD is current rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent disability rating is warranted 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.

A 70 percent rating is warranted where 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 inability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.

A 100 percent rating is warranted where 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; memory loss for names of close relatives, own occupation, or own name.

The United States Court of Appeals for the Federal Circuit held that an evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vasquez-Claudio v. Shinseki, 713 F3d 112, 11617 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, "serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vasquez-Claudio, 713 F.3d at 11718; 38 C.F.R. § 4.130, DC 9411.

Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission." 38 C.F.R. § 4.126(a). The Board must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." Id.

Turning to the evidence of record, in October 2012 he underwent a VA psychiatric examination report which included a review of the claims file, a recitation of complaints and medical history, and psychiatric examination results. The report determined he had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. He subjectively reported struggling with spells of depression lasting an entire day. The report also determined he experienced the following symptoms associated with his acquired psychiatric disorder: depression, chronic sleep impairment and disturbances in mood and motivation.

As a result of the above examination, the RO granted service connection for his acquired psychiatric disorder and assigned a 30 percent rating in a December 2012 rating decision.

In June 2013, the Veteran underwent another VA psychiatric examination report which included a review of the claims file, a recitation of complaints and medical history, and psychiatric examination results. The report determined he had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The report determined he experienced the following symptoms associated with his acquired psychiatric disorder: depression, chronic sleep impairment, mild memory loss, and disturbances in mood and motivation. In the remarks section, the examiner noted the following:

Concentration is generally intact with some minor issues. His mood is up and down. His energy level is low. He notes some fairly mild memory loss... He notes some anxiety but feels depression is more predominant.... When asked if things were worse, better, or about the same since the last exam the Veteran felt things were "a little bit worse."

From February 2013 to May 2014, VA psychiatric treatment records indicate that on eight occasions he subjectively reported having a low mood and struggling with depression. On those occasions, mental status examinations did not reveal any abnormalities and he denied experiencing suicidal ideation. 

Attached to his August 2013 notice of disagreement (NOD), he alleged he struggles with his long- and short-term memory, disturbances in mood, and anxiety in groups. 

From October 2014 to April 2016, VA psychiatric records indicate he subjectively reported lowered anxiety on four occasions and during those occasions mental status examinations did not reveal any abnormalities and he denied experiencing suicidal ideation. In October 2016, VA psychiatric records indicate he denied suicidal ideation and a mental status examination did not reveal any abnormalities. In April 2017, VA psychiatric records indicate he reported increased stress due to family issues but denied suicidal ideation. In May and August 2017, VA psychiatric records indicate he reported being less anxious and irritable, denied suicidal ideation, and mental status examinations did not report any abnormalities. From November 2017 to October 2019 VA psychiatric records indicate that on nine occasions he denied suicidal ideation and six mental status examinations during that period did not reveal any abnormalities. From May 2020 to December 2020, VA psychiatric records indicate he reported increased stress due to the COVID-19 pandemic. On July 2, 2021, VA psychiatric records indicate he denied experiencing suicidal ideation.

After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the weight of the evidence is against finding the Veteran's acquired psychiatric disorder warrants a disability rating in excess of 30 percent prior to July 2, 2021.

As previously stated, a 50 percent disability rating is warranted 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.

Here, the Board acknowledges the Veteran's lay statements regarding a worsening of his acquired psychiatric disorder; however, the evidence of record does not support his claim. See 2013 NOD. Throughout the entire period on appeal, the Veteran has denied experiencing suicidal ideation and mental status evaluations have never indicated he experienced circumstantial, circumlocutory, or stereotyped, speech, impaired judgment; panic attacks, impaired abstract thinking, or difficulty establishing or maintaining effective work and social relationships. Indeed, despite extensive psychiatric records in the claims file, none of the records document he experienced any of the above listed symptoms or issues. Moreover, the evidence indicates he maintains healthy familial relations and has been working throughout the appeal period. Furthermore, while the Board acknowledges there are records documenting disturbances in his mood and his subjective complaints of memory loss, these are currently contemplated by his 30 percent rating. While the Board by no means doubts the veracity of the Veteran's claims or difficulties he experiences with his acquired psychiatric disorder, his symptoms simply do not rise to the level and severity contemplated by a 50 percent rating.

In conclusion, the weight of the evidence is against finding his acquired psychiatric disorder warrants a disability rating in excess of 30 percent. To the extent that any higher rating is sought, the weight of the evidence is against the claim and the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran's claim for a disability rating in excess of 30 percent, prior to July 2, 2021, for an acquired psychiatric disorder is denied.

REASONS FOR REMAND

3. Acquired Psychiatric Disorder After July 2, 2021

In this case, the evidence of record does not include any medical evidence after July 2, 2021. Moreover, during the Veteran's November 2021 Board hearing he alleged the symptoms of his acquired psychiatric disorder have worsened and he continues to receive psychiatric treatment at a VA facility. Thus, it is plausible that since July 2, 2021, the Veteran's acquired psychiatric disorder has worsened, and that medical evidence of his worsening has not been associated with the claims file. Additionally, the last time the Veteran underwent a VA psychiatric disorder examination was in 2013. As such, considering the length of time since his last examination coupled with the lack of medical evidence since July 2021 and his claims of a worsening disability, the Board finds a remand for medical records and a new VA examination is required prior to adjudication of the Veteran's claim.

The matter is remanded for the following actions:

1. Acquire any outstanding VA treatment records created since July 2, 2021.

2. Schedule the Veteran for a VA psychiatric examination to determine the current severity of his acquired psychiatric disorder.

3. After the above is completed, readjudicate the Veteran's claim.

 

 

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Law Clerk, Tyler R. Masters

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.