Citation Nr: A25019366
Decision Date: 03/04/25	Archive Date: 03/04/25

DOCKET NO. 240912-473773
DATE: March 4, 2025

ORDER

Entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder, from March 1, 2016, is denied.

FINDING OF FACT

The Veteran's acquired psychiatric disorder during the period on appeal was characterized by symptoms including suicidal ideation, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, disturbances of motivation and mood, anxiety, weekly panic attacks, and chronic sleep impairment which resulted in occupational and social impairment with deficiencies in most areas; total social and occupational impairment was not demonstrated.

CONCLUSION OF LAW

The criteria for entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.13, 4.130, Diagnostic code (DC) 9400.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the Army from October 1968 to September 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2023 rating decision. 

This claim stems from a Joint Motion for Remand (JMR) issued by the United States Court of Appeals for Veterans Claims (Court) in December 2019 which vacated the part of a January 2019 Board decision that denied entitlement to an evaluation in excess of 70 percent for the Veteran's acquired psychiatric condition from March 1, 2016. In response, the Board has remanded the claim on three occasions. In June 2020 and June 2021, the Board asked for an opinion on the differences between the DSM-5 and DSM-IV symptoms, including the severity of the Veteran's service-connected psychiatric disorder under each to include comment or explanation any differences in severity of the Veteran's psychiatric disorder under the different DSM-5 and DSM-IV editions, if any. In October 2022, the Board remanded asking for assignment of a current global assessment functioning (GAF) score pursuant to the DSM-IV. While the subsequent November 2022 opinion did not supply a GAF score, the examiner noted that GAF scores are no longer used in current psychiatric practice, and generally stated it would not be relevant to assessing the Veteran's disability rating. The examiner noted that functioning and limitations are the focus of determining the severity of the Veteran's condition, which was described. Notably, an April 2018 examiner made similar observations and provided an estimated GAF score if it were still in use. 

In light of this, the Board finds there has been substantial compliance with prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998).  The Board notes that the standard requires substantial compliance, and not strict or absolute compliance. D'Aires v. Peake, 22 Vet. App. 97, 105 (2008). The Board has attempted on multiple occasions to obtain the requested information. The information provided adequately addresses the severity of the Veteran's condition during the period on appeal, and any information not provided at this point is either irrelevant or inherently unobtainable. As there is substantial information available to accurately assess the germane issues to the claim, to include severity of the condition, the Board finds substantial compliance has been achieved. 

In the September 12, 2024, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the September 2023 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran [or representative] with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

The Board acknowledges the argument from the Veteran's representative, which contends that as part of the acquired psychiatric rating the Veteran should be entitled to separate ratings for erectile dysfunction and a total disability rating based on individual unemployability. However, these claims were not included on the VA Form 10182 in the instant appeal, and were adjudicated as new claims in a February 2025 rating decision, and must be appealed separately. As such, these issues are not before the Board in this appeal.

Increased Ratings

Disability evaluations are determined by applying a schedule of ratings which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the review period. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7.

As reflected in the title page, the Board has considered the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. To determine the appropriate rating, the Board has considered the totality of the Veteran's psychiatric impairment. See Amberman v. Shinseki, 570 F.3d 1377 (2009).

Entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder, from March 1, 2016.

The Veteran seeks an increased rating for his acquired psychiatric disorder. During the period on review, the Veteran's acquired psychiatric disorder was assigned a 70 percent rating using the General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130, DC 9400.  

The General Rating Formula for psychiatric disabilities provides that a 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideations; 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 the veteran's personal appearance and hygiene; difficulty in adapting to stressful circumstances (including in work or work like settings); inability to establish and maintain effective relationships. Id.

In order to warrant a 100 percent rating for this period, the evidence must show 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 or loss for names of close relatives, own occupation, or own name. Id. 

Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall 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. See 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2.

After review of the evidence of record, the Board determines an increased rating is not warranted for the period on review. Specifically, the evidence indicates that the frequency, severity, and duration of the Veteran's psychiatric symptoms did not rise to the level of total occupational and social impairment.

Notably, VA treatment records do not demonstrate severe symptoms attributed to the Veteran's acquired psychiatric disorder. For example, a March 2016 record noted symptoms of sadness, anxiety, poor interest, worries, traumatic memories, guilt, and trust or self-esteem issues. However, no manic, psychotic, cognitive, or panic symptoms were noted, and he was described as better, stable, and at his baseline. In April 2016 he reported exacerbation of anxiety symptoms, including feeling restless, irritable, with poor tolerance to frustration and feeling withdrawn and isolated. However, he denied feelings of depression, poor impulse control, suicidal ideations, delusional thinking, or hallucinations. An August 2023 record noted anxiety, worry, traumatic memories, trust and safety issues, social isolation, concentration impairment and hypervigilance but he was described as stable, calm, and coping with chronic symptoms and stressors with no recent anxiety episodes. Overall, treatment records regularly noted he was able to successfully cope with symptoms despite both internal and external difficulties. While he is consistently described in treatment records as having an anxious mood and congruent affect, he is also consistently described as alert, attentive, cooperative, reasonable, with normal speech, normal and coherent logical thought, intact memory, and fair insight and judgment. 

VA examinations and opinions to evaluate the severity of his condition were obtained in March 2016, April 2018, June 2020, December 2021, and November 2022. At worst, his acquired psychiatric disorder was determined to 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 consistent with a 30 percent rating. The Veteran reported anxiety, panic attacks, thoughts of suicide, sleep impairment, feelings of distrust and fear, poor frustration tolerance, concentration difficulties, and being mostly isolated outside his immediate family. Examiners noted symptoms of anxiety, weekly panic attacks, sleep impairment, disturbances of motivation and mood, difficulty adapting to stressful circumstances, and difficulty or inability in establishing and maintaining effective work and social relationships.  

Overall, the evidence of record reflects the frequency, severity, and duration of psychiatric symptoms experienced by the Veteran do not indicate total occupational and social impairment. Notably, symptoms contemplated by a 100 percent rating are not present. Treating physicians and examiners did not indicate any gross impairment in thought or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, inability to perform activities of daily living, disorientation to time or place, or severe memory loss. At worst, the Veteran's symptomatology was more closely approximated by the illustrative symptoms listed in the rating criteria for a 70 percent rating or below, including suicidal ideation, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, disturbances of motivation and mood, anxiety, weekly panic attacks, and chronic sleep impairment. The Veteran is consistently described as being appropriately groomed and dressed, having normal speech, with logical and coherent thought, with fair judgment and insight. No evidence of severe symptoms requiring emergent care or hospitalization are evident. Although the Veteran reported almost obsessive ideas of committing suicide at the March 2016 examination, reports since that time deny any suicidal ideation or plan and he is consistently noted as not posing a risk of harm to himself or others. Additionally, while he reported auditory hallucinations to a private physician in the context of a vocational assessment, there are no reports of this during the period on review, including to his treating physicians. As such, symptoms consistent with total social and occupational impairment are not demonstrated. 

Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of total occupational and social impairment. However, overall, total impairment is not demonstrated either occupationally or socially.

In this regard, although the Veteran has not been employed since 2019 this does not appear to be solely due to psychiatric symptoms. Notably, a December 2015 record noted he was planning to retire because of the physical complications of diabetes and dissatisfaction. A March 2016 VA examination noted symptoms did not affect his ability to maintain employment, despite some symptoms experienced at work. After retirement, the Veteran demonstrated the ability to maintain activities that indicate psychiatric symptoms alone would not prevent employment. Notably, he maintains living alone independently, including navigating technology to assist with things such as shopping, and reported being able to clean his home and prepare simple meals. Overall, he exhibits significant mental functioning that demonstrates his symptoms do not result in total occupational impairment. 

Additionally, while psychiatric symptoms appear to have significant impact on his social functioning, total social impairment is not demonstrated. Notably, while the Veteran routinely describes a desire to be at home with no significant social friends, he has maintained immediate family relationships. He consistently described relationships with family, including his children and grandchildren, as positive and supporting. Additionally, although he described withdrawing from social situations, his symptoms have not prevented significant social outings. Notably, he described a cruise trip with his family in 2019, and reported he did not experience any anxiety attacks. Overall, although he does not have significant friendships or other social relationships, his maintained family relationships and ability to tolerate social situations indicate his symptoms do not result in total social impairment.

When considering the Veteran's acquired psychiatric disorder on a holistic basis, the persuasive weight of the evidence indicates that at worst, his condition more closely approximated the nature, frequency, and severity of a 70 percent rating under DC 9400 for the period on review.

Accordingly, entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder is not warranted and the claim must be denied.

As the Board finds the evidence to be persuasively against the claims herein, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 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. 

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Patterson, Associate Counsel