Citation Nr: 22041985 Decision Date: 07/22/22 Archive Date: 07/22/22 DOCKET NO. 15-02 034 DATE: July 22, 2022 ORDER Entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disorder to include an adjustment disorder with mixed emotional features prior to January 23, 2015, is denied. Entitlement to a 100 percent rating for an acquired psychiatric disorder to include an adjustment disorder with mixed emotional features from January 23, 2015, is granted. FINDINGS OF FACT 1. Prior to January 23, 2015, the Veteran's acquired psychiatric disorder did not manifest as 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 and impaired abstract thinking. 2. Granting the benefit of the doubt to the Veteran, from January 23, 2015, the Veteran's acquired psychiatric disorder has been productive of symptomatology resulting in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for an acquired psychiatric disorder prior to January 23, 2015, are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9440. 2. The criteria for a disability rating of 100 percent for an acquired psychiatric disorder, from January 23, 2015, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.130, Diagnostic Code 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1999 to October 2002. This appeal is before the Board of Veterans' Appeals (Board) from a July 2010 rating decision from a Department of Veterans Affairs (VA) Regional Office and in Janaury 2020, the Veteran was afforded a Board hearing and provided testimony before the undersigned Veteran's Law Judge (VLJ) and a transcript of that hearing is associated with the claims file. In March 2021, the Board denied the Veteran's claim for a disability rating in excess of 30 percent for an acquired psychiatric disorder prior to July 13, 2017. The Veteran subsequently appealed the March 2021 Board decision to the U.S. Court of Appeals for Veteran's Claims (CAVC) and in February 2022 the interested parties agreed to a Joint Motion for Partial Remand (JMPR) after finding the Board did not provide adequate reasoning and bases in denying the claim and the undersigned VLJ did not provide a hearing in compliance with 38 C.F.R. § 3.103(c)(2). This decision complies with the JMPR. In specific reference to compliance with 38 C.F.R. § 3.103 (c)(2), the 2022 JMPR did not specifically order the Board to afford the Veteran another hearing. Moreover, as will be explained in this decision, by affording the Veteran the benefit of the doubt based on her husband's 2020 Board hearing testimony, the Board is remedying any prior deficiencies; and the Veteran is not prejudiced by the Board's decision not to afford her a new hearing. Turning to the Veteran's claim, the Veteran seeks entitlement to a disability rating in excess of 30 percent for her acquired psychiatric disorder prior to July 13, 2017. The Board notes, the evidence of record will be recited together and analyzed separately below. 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 acquired psychiatric disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9440. 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. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV and replacing those references with references to the recently updated "DSM-5." These new provisions do not apply to claims pending before the Board on or before August 4, 2014. According to the DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale, and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014. Since the Veteran's claim was certified to the Board after August 4, 2014, only the criteria found in the DSM-5 are applicable. Thus, in addition to the certification date and because GAF scores are methodologically flawed and are particularly unreliable as applied to psychiatric disorders, in this decision, the Board will place no reliance on GAF scores for rating this Veteran's acquired psychiatric disorder. Turning to the evidence of record, a May 2010 VA psychiatric evaluation included a review of the claims file, a recitation of complaints and medical history, and examination results. The examiner noted the Veteran is prescribed medication for "chronic anxiety." The Veteran subjectively reported she is "easily stressed" and has difficulty maintaining relationships because she "filters out" individuals who cause her stress. A mental status examination did not reveal any abnormalities. Ultimately, the examiner confirmed the Veteran's diagnosis of an anxiety disorder and determined she was not a danger to herself or others and her ability in the workplace is "moderately impaired." In June 2010, VA records indicate the Veteran reported decreased anxiety. In August 2010 and March 2011, VA examinations for her epilepsy and seizures included mental status evaluations which did not reveal any abnormalities. In October and November 2011, VA records indicated she reported increased anxiety and anger due to recent issues with the Veteran's Health Administration. In Janaury 2012, VA records included a mental status evaluation which did not reveal any abnormalities. In February 2012, she reported feeling happy and experiencing stress due to wedding planning. In March 2012 VA records included a mental status evaluation which did not reveal any abnormalities. On June 7, 2012, VA records indicate the Veteran reported being "quite happy." On June 19, 2012, VA records indicate she subjectively reported, "her personality and ADD make it difficulty for her to focus." The record also states, "[the Veteran] had pressured speech and has been quite angry and upset virtually every visit." In August 2012, VA records indicate she reported she is "much improved" since her last visit and she is not having difficulty with anger. In October 2012, VA records she reported increased stress due to her marriage, a new house, and her family. In January 2013, VA records indicate she reported her mood was okay, that she has been depressed but that it normally is not prolonged, and she is still able to perform activities of daily living. Also, a mental status evaluation did not reveal any abnormalities. In April 2013, VA records noted she reported increased stress due to her dog being bitten by another dog and the record included a mental status evaluation which did not reveal any abnormalities. In March 2013, a private medical examination related to her seizures revealed the Veteran subjectively reported she is married and is "very frustrated and depressed" because her driver's license was revoked. She also subjectively reported she had "anger management issues in the past" but that she is now "far less reactive than she used to be." A mental status examination noted her speech was pressured at the beginning but calm and fluent at the end, her affect was frustrated at the beginning but more and reflective at the end, and no other abnormalities were noted. In June 2013, VA records indicate she reported her mood as stable with increased stressed due to her family, and a mental status examination noted she appeared anxious and stressed, but did not note any other abnormalities. In August 2013, VA records indicate she reported "doing well" and a mental status examination indicated she appeared nervous and did not note any other abnormalities. On October 2, 2013, the Veteran underwent a VA mental disorders examination report which included a review of the claims file, a recitation of complaints and medical history, and examination results. The examiner determined she had occupational and social impairment due to mild or transient symptoms. The examiner also determined her symptoms included difficulty establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances including work and work like settings. On October 7, 2013, VA records indicate she reported increased anxiety and sleeping issues resulting from a recent car accident and a mental status evaluation noted she seemed anxious, tearful, and had a constricted affect. In February 2014, VA records indicate she reported that she is "doing well" and a mental status examination indicated she appeared nervous and did not note any other abnormalities. In July 2014, VA records indicate she reported being "less angry" and a mental status examination indicated she appeared nervous and did not note any other abnormalities. A November 2014 VA records included a mental status evaluation which noted she appeared moderately anxious and spoke rapidly but did not reveal any abnormalities. In December 2014, VA records indicated she reported stopping psychiatric medication in an attempt to have a child, reported her anxiety was "a bit higher," denied suicidal and homicidal ideation, and a mental status evaluation did not reveal any abnormalities. On July 13, 2017, the Veteran's private physician completed a VA mental disorders disability benefits questionnaire and determined the Veteran's acquired psychiatric disorder manifested as total occupational and social impairment. During the Veteran's Janaury 2020 Board hearing, the Veteran's husband, in regard to the Veteran's acquired psychiatric disorder stated, "over the last 5 years, I've seen a pretty rapid decrease in her ability to cope with even the simplest of tasks." Additionally, the undersigned VLJ noted a "big gap" of time where the evidence of record does not contain any documented psychiatric treatment from roughly 2015 to 2017. In March 2021, as previously stated, the Board denied the Veteran a disability rating in excess of 30 percent prior to July 13, 2017, and granted a 100 percent rating thereafter. However, the Veteran appealed the Board's decision to CAVC and in February 2022 the interested parties agreed to a JMPR after determining the Board provided inadequate reasons and bases in denying the Veteran's claim prior to July 13, 2017, and whether the Veteran was afforded a proper hearing under 38 C.F.R. § 3.103(c)(2). Specifically, CAVC determined: The Board [did not] adequately discussed when it was factually ascertainable that she met the criteria for an increased disability rating... On remand the Board shall specifically consider and discuss when it was first factually ascertainable that Appellant's service-connected acquired psychiatric disorder more closely approximated the criteria for a disability rating in excess of 30%... [The Board also did not adequately discuss] whether the January 2020 hearing officer complied with all required duties pursuant to 38 C.F.R. § 3.103(c)(2)... the presiding VLJ neither solicited testimony from Appellant or her spouse as to exactly when her symptoms had worsened, nor adequately explained the manner that effective dates are assigned in cases such as Appellant's. Put another way, the VLJ neither attempted to ascertain when Appellant's symptoms increased to a level of impairment worse than that contemplated by a 30% disability rating, nor explained that the effective date assigned would be predicated on when the increase in the level of her disability could be factually ascertained. Accordingly, because the January 2020 VLJ did not suggest the submission of evidence that could substantiate an earlier effective date for a disability rating in excess of 30% and did not seek to clarify whether a more specific date of increased severity could be ascertained, he did not satisfy his duties pursuant to 38 C.F.R. § 3.103(c)(2), requiring vacatur and remand. 1. Increased Rating in Excess 30 Percent Prior to January 23, 2015 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 January 23, 2015. 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. As an initial matter, the Board acknowledges the concerns outlined in the 2022 JMPR regarding the deficiencies in the 2020 Board hearing. However, the Board finds the VA psychiatric treatment records during this period prior to January 13, 2015, are voluminous and regular. This evidence, in conjunction with lay evidence regarding the severity of the psychiatric disorder, is sufficiently probative for the Board to adjudicate the Veteran's claim prior to Janaury 23, 2015. As to rating the Veteran's acquired psychiatric disorder, the Board finds the evidence of record simply does not support the assignment of a disability rating in excess of 30 percent prior to Janaury 23, 2015. During this period the Board acknowledges the Veteran sporadically reports incidents of increased stress and anxiety. However, none of the incidents of worsening are repeated in the following months treatment thus indicating them to be akin to occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms such as depression and anxiety contemplated by her 30 percent rating. See 38 C.F.R. § 4.130. Moreover, despite extensive VA treatment records and multiple psychiatric evaluations, at no point prior to Janaury 23, 2015, does a licensed medical professional determine the Veteran's acquired psychiatric disorder manifested as 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. To the extent the Veteran experienced disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships, these symptoms do not rise to the level contemplated by a 50 percent rating. Indeed, during this time period the Veteran became engaged and married to her current husband and discussed creating new friend groups and enjoying such time with friends. To the extent the Veteran is unemployed and unable to work during this period, the evidence indicates that is related to her 100 percent service-connected epilepsy condition and she is compensated for such impairments. While the Board by no means doubts the veracity of the Veteran's claims or difficulties regarding her acquired psychiatric disorder, during this time period, there are no other psychiatric records or other evidence that demonstrate the Veteran's symptoms rise to the severity commensurate with a 50 percent rating or above. In conclusion, 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 January 23, 2015. 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 for an acquired psychiatric disorder prior to Janaury 23, 2015, is denied. 2. Increased Rating in Excess 30 Percent From January 23, 2015 After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds that granting reasonable doubt to the Veteran, her acquired psychiatric disorder warrants a 100 percent rating from Janaury 23, 2015. As previously stated, a 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. In this case, as pointed out in the 2022 JMPR, during the Janaury 23, 2020, Board hearing the Veteran's spouse attested to witnessing a decrease in the Veteran's ability to perform daily tasks due to her psychiatric disorders over the previous 5 years. Also, during that 5-year period, the July 2017 VA examination determined the Veteran's acquired psychiatric disorder manifested as total occupational and social impairment. Moreover, this is supported by the evidence outlined above which contained a voluminous amount of VA psychiatric records up until December 2014 that reflected her symptoms were approximated by her current 30 percent rating. Likewise, as noted in the Board hearing, there is a gap of time from 2015 to 2017 where the evidence does not contain documented psychiatric treatment; however, the Board finds her spouse is credible to report witnessing a deterioration in the Veteran's condition in the 5 years prior to the Board hearing and that it represents the only evidence during that period. As such, the Board will afford the benefit of the doubt to the Veteran and find that her acquired psychiatric disorder did not specifically deteriorate as of July 23, 2017, but instead began 5 years prior to the date of the hearing on January 23, 2015. Accordingly, based on the above and granting the benefit of the doubt to the Veteran, her acquired psychiatric disorder manifested as total occupational and social impairment as of Janaury 23, 2015. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. As such, the Veteran's claim for a disability rating of 100 percent for her acquired psychiatric disorder as of January 23, 2015, is granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Attorney Advisor, 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.