ACQUIRED PSYCHIATRIC DISORDER

Summary

The Veteran, an Army veteran who served from October 1971 to November 1974, appeals the denial of an initial disability rating in excess of 70 percent for his acquired psychiatric disorder, which includes depression and dementia with insomnia. The Board reviewed the evidence of record as it existed at the time of the September 2024 agency of original jurisdiction (AOJ) decision, as the Veteran elected the Direct Review docket. The Board noted that the Veteran's case was advanced on the docket due to advanced age and that the Veteran waived the remaining time to change appeal lanes. The Board affirmed the prior favorable finding that the Veteran's acquired psychiatric disorder warranted a 70 percent rating from July 29, 2016, forward. However, the Board denied entitlement to a rating in excess of 70 percent. The Board considered the Veteran's symptoms, including suicidal ideation, neglect of personal appearance and hygiene, and impaired impulse control, but found they did not rise to the level of total occupational and social impairment required for a 100 percent rating. Specifically, the Board found that while the Veteran experienced passive suicidal ideation and inability to perform activities of daily living (ADLs), these symptoms were not attributable to the acquired psychiatric disorder but rather to other service-connected disabilities, such as Parkinson's disease. The Board also noted the Veteran's generally positive social relationships, which weighed against a finding of total social impairment. The evidence persuasively weighed against a 100 percent rating.

Rationale

Symptoms did not rise to the level of total occupational and social impairment required for 100% rating.; Inability to perform ADLs attributed to other service-connected disabilities, not acquired psychiatric disorder.; Positive social relationships weigh against total social impairment.

Full Decision Text

Citation Nr: A26009426
Decision Date: 02/02/26	Archive Date: 02/02/26

DOCKET NO. 251126-610798
DATE: February 2, 2026

ORDER

Entitlement to an initial rating in excess of 70 percent for depression and dementia with insomnia (acquired psychiatric disorder) is denied. 

FINDING OF FACT

The severity, frequency, and duration of the Veteran's acquired psychiatric disorder symptoms did not more closely approximate total occupational and social impairment.

CONCLUSION OF LAW

The criteria for a disability rating in excess of 70 percent for acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served honorably on active duty in the United States Army from October 1971 to November 1974. This matter comes to the Board of Veterans' Appeals (Board) from a November 2025 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 

The rating decision on appeal was issued in November 2025 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In August 2025, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a September 2024 decision. In November 2025, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior September 2024 decision. Therefore, the Board may only consider the evidence of record at the time of the September 2024 decision.

In the November 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the September 2024 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 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. 

As an initial matter, the Board notes that pursuant to?38 C.F.R. § 20.202(c)(2), an appellant may modify a Notice of Disagreement (NOD) to change the Board docket being requested. The time limit for such modification is "within one year from the date that the RO mails notice of the decision on appeal, or within 60 days of the date that the Board receives the NOD, whichever is later." See?38 C.F.R. § 20.202(c)(2). "[T]he Board ordinarily may not decide an appeal before this time period is up." Williams?v. McDonough,?37?Vet. App.?305?(2024). As a result of Williams, supra, the Board would normally be precluded from adjudicating this appeal until November 20, 2026, which is the later date between (a) one year after the rating decision to be appealed, and (b) 60 days after receipt of the Notice of Disagreement.?However, the Veteran's case has been advanced on the docket due to advanced age. See 38 C.F.R. §?20.800.  The Board notes that in a letter submitted with the November 2025 NOD, the Veteran through his representative has waived the remaining time and right to change appeal lanes at the Board and requested that the Board proceed with adjudication of this matter. 38 C.F.R. § 20.202(c)(2). The Board will therefore proceed with adjudication of his appeal in recognition of these facts.

Disability Ratings

Disability ratings are determined by the application of a schedule of ratings, which are based on the average
 60 days after receipt of the Notice of Disagreement.?However, the Veteran's case has been advanced on the docket due to advanced age. See 38 C.F.R. §?20.800.  The Board notes that in a letter submitted with the November 2025 NOD, the Veteran through his representative has waived the remaining time and right to change appeal lanes at the Board and requested that the Board proceed with adjudication of this matter. 38 C.F.R. § 20.202(c)(2). The Board will therefore proceed with adjudication of his appeal in recognition of these facts.

Disability Ratings

Disability ratings are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. See 38 C.F.R. § 4.7. A request for an increased rating is to be reviewed in light of the entire relevant medical history. See generally 38 C.F.R. § 4.1; Payton v. Derwinski, 1 Vet. App. 282, 287 (1991).

Separate diagnostic codes identify the various disabilities and criteria under which they will be rated, and the assignment of a Diagnostic Code (DC) depends wholly on the facts of the case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

A separate or higher rating may be assigned based on non-overlapping conditions and symptoms, if the compensable criteria under applicable diagnostic codes are met. See 38 C.F.R. §§ 4.14, 4.125, 4.126, 4.130; Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). 

The most relevant information in determining the appropriate initial disability rating pertains to the severity of the disability since the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be awarded if there are decreases or increases in symptomatology that meet the criteria for a different rating for a distinct period. Hart v. Mansfield, 21 Vet. App. 505 (2007). This decision focuses on the evidence pertinent to the rating criteria and disability severity during the relevant periods on appeal, but the Board has considered the entire record to have a full picture of the disability. See 38 C.F.R. §§ 4.1, 4.2, 4.41; Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). 

When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 

Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal," and does not require that the evidence be in exact equipoise. Evidence is in approximate balance when the evidence in favor of and opposing the Veteran's claim is found to be almost exactly or nearly equal. See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 21 F.4th 776 (Fed. Cir. 2021) (exact equipoise is not required for benefit of the doubt to be applied); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability
 or "nearly equal," and does not require that the evidence be in exact equipoise. Evidence is in approximate balance when the evidence in favor of and opposing the Veteran's claim is found to be almost exactly or nearly equal. See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 21 F.4th 776 (Fed. Cir. 2021) (exact equipoise is not required for benefit of the doubt to be applied); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 

1. Entitlement to an initial rating in excess of 70 percent for depression and dementia with insomnia (acquired psychiatric disorder) is denied.

This appeal originates from an October 2020 rating decision that assigned an initial 30 percent rating for the Veteran's acquired psychiatric disorder under Diagnostic Code (DC) 9434. The Veteran continuously pursued entitlement to a higher initial rating by filing timely and proper requests for administrative review of prior decisions through the November 2025 rating decision currently on appeal. 

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). The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. The use of the term "such symptoms as" in 38 C.F.R. § 4.130 indicates that the list of symptoms that follows is non-exhaustive, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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). 

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.

In addition to the downstream decisions between the October 2020 decision and the November 2025 decision currently on appeal, the AOJ issued separate rating decisions regarding the effective date and disability rating for the Veteran's acquired psychiatric disorder. The Veteran pursued administrative review of those decisions through separate requests, ultimately leading to a December 2025 Board decision which awarded entitlement to an initial 70 percent rating, but no higher, from July 29, 2016, for the Veteran's service-connected acquired psychiatric disorder. 

The Board made favorable findings in the December 2025 decision in that the Veteran's acquired psychiatric disorder manifested symptoms more closely approximate to the 70 percent rating criteria beginning on or prior to the July 29, 2016, effective date of service connection and continuing throughout the appeal period. The Board is bound by these favorable findings to the extent that the severity of the Veteran's acquired psychiatric disorder symptoms warrant no less than a 70 percent rating throughout the appeal period. 38 C.F.R.
 decisions through separate requests, ultimately leading to a December 2025 Board decision which awarded entitlement to an initial 70 percent rating, but no higher, from July 29, 2016, for the Veteran's service-connected acquired psychiatric disorder. 

The Board made favorable findings in the December 2025 decision in that the Veteran's acquired psychiatric disorder manifested symptoms more closely approximate to the 70 percent rating criteria beginning on or prior to the July 29, 2016, effective date of service connection and continuing throughout the appeal period. The Board is bound by these favorable findings to the extent that the severity of the Veteran's acquired psychiatric disorder symptoms warrant no less than a 70 percent rating throughout the appeal period. 38 C.F.R. § 3.104(c). 

As the maximum rating has not been assigned and the Veteran has expressly asserted that he is seeking a rating of "at least 70 percent" for his acquired psychiatric disorder, the Board finds that the Veteran continues to seek the maximum possible, 100 percent, disability rating by way of this appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent for his acquired psychiatric disorder.

The Board concludes that the Veteran's acquired psychiatric disorder symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's acquired psychiatric disorder manifested symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. 

Evidence & Analysis

The Veteran's June 2020, October 2021, May 2023 VA examinations, lay statements and reports, and the December 2020 independent medical evaluation show that the Veteran's acquired psychiatric disorder was manifested by symptoms associated with a 70 percent rating including suicidal ideation; neglect of personal appearance or hygiene; speech that is intermittently illogical, obscure, or irrelevant; impaired impulse control described as volatility and unpredictability, and severe and classic signs and symptoms of depression since at least 2015 which have led to anhedonia, hopelessness, helplessness, despair, and near continuous depression. 

To the extent the Veteran seeks an initial rating in excess of 70 percent for his acquired psychiatric disorder, the Board does not find that the Veteran's symptoms attributable to his acquired psychiatric disorder are generally of similar severity, frequency, and duration as those described in the higher rating criteria for a 100 percent rating so as to be in approximate balance to warrant such a rating. While the evidence includes reports of passive suicidal ideation, including feelings of hopelessness, this symptom is not analogous to persistent danger of hurting self or others as contemplated by the 100 percent rating criteria; nor has such persistent danger of hurting self or others been present or alleged to have been present at any point during the appeal period. See Bankhead, 29 Vet. App. at 21 (indicating that to the extent the risk of self-harm is expressly mentioned in § 4.130 at all, it is referenced in the criteria for a 100 percent evaluation).

The Board has also considered documented evidence of significant and long term inability to perform activities of daily living (ADLs), which is listed among the 100 percent rating criteria under the General Formula. However, the evidence persuasively shows that the Veteran's inability to perform ADLs is not due to or manifest by his acquired psychiatric disorder.

To this point, none of the February 2020, June 2020, October 2021 and May 2023 VA examination reports for acquired psychiatric disorder found that the Veteran's acquired psychiatric disorder manifest intermittent inability to perform ADLs or any other symptoms of the 100 percent rating criteria. Moreover, although the December 2020 independent evaluation report repeatedly discussed the Veteran's inability to perform ADLs due to "motor symptoms" of Parkinson's disease, the evaluation report describes the Veteran's acquired psychiatric disorder has having "profoundly affected his daily activities," but does not conclude that the Veteran's acquired psychiatric disorder has manifested symptoms of or analogous to inability to perform ADLs. See VBMS document titled, "Medical Treatment Record - Non-Government Facility," receipt date 09/30/2021, pages 17-20 of 85. In addition, the Veteran's file includes numerous other VA examination reports dated February 2020, October 2020, November 2020, October 2021, January 2022, and June 2023 for the Veteran's service-connected Parkinson's Disease, loss of use of both hands and both feet, peripheral nerves of the upper and lower extremities, and aid and attendance needs. These VA examination reports all attribute the Veteran's inability to perform
 not conclude that the Veteran's acquired psychiatric disorder has manifested symptoms of or analogous to inability to perform ADLs. See VBMS document titled, "Medical Treatment Record - Non-Government Facility," receipt date 09/30/2021, pages 17-20 of 85. In addition, the Veteran's file includes numerous other VA examination reports dated February 2020, October 2020, November 2020, October 2021, January 2022, and June 2023 for the Veteran's service-connected Parkinson's Disease, loss of use of both hands and both feet, peripheral nerves of the upper and lower extremities, and aid and attendance needs. These VA examination reports all attribute the Veteran's inability to perform his ADLs to functional impairments caused by or manifested by symptoms other than those due to or associated with his acquired psychiatric disorder. 

While the Veteran does experience a symptom contemplated by a 100 percent rating criteria, inability to perform ADLs, the evidence persuasively shows that it is not attributable to the Veteran's acquired psychiatric disorder but is instead due to his other service-connected disabilities. Overall, the evidence does not demonstrate the level of impairment associated with the 100 percent rating criteria for mental disorders. 

As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Further, the Veteran was not totally socially impaired. VA examination reports shows that the Veteran has indicated that he has been happily married to his wife since 1973. See VBMS document titled, "C&P Exam," receipt date 06/08/2023. The evidence also reflects that he has three adult children and six grandchildren, and had described these relationships as "a blessing." Id. Additionally, at the June 2020 VA mental disorders examination, the Veteran reported that he socially gets along with others and maintains friendships. See VBMS document titled, "C&P Exam," receipt date 06/25/2020. Taken together, the evidence of record is not reflective, tantamount to, or approximate to total social impairment or the inability to establish and maintain effective relationships. 

In short, the evidence of record persuasively weighs against finding that the severity, frequency, and duration of the Veteran's symptoms of his acquired psychiatric disorder resulted in the level of impairment required for a rating in excess of 70 percent at any time during the appeal period. The benefit-of-the-doubt doctrine is not applicable because the evidence is neither evenly balanced nor approximately so, instead the evidence is persuasively against a rating in excess of 70 percent for the Veteran's acquired psychiatric disorder at any time during the appeal period. See Lynch, 21 F.4th 776. Therefore, the Board finds that the criteria for a rating in excess of 70 percent for the Veteran's acquired psychiatric disorder are not met, and the appeal must be denied.

 

 

Bethany L. Buck

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Webb, Katherine S.

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.