Citation Nr: 18142740 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-22 363 DATE: October 17, 2018 ORDER Entitlement to an initial rating of 50 percent, but no higher, for psychiatric disability is granted. FINDING OF FACT For the entire appeal period, the Veteran’s psychiatric disorder more nearly approximates occupational and social impairment with reduced reliability and productivity; it does not approximate higher levels of occupational and social impairment. CONCLUSION OF LAW During the period at issue, the criteria for a 50 percent, but not higher, rating for psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2004 through July 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service connection for psychiatric disability was granted in that rating action, with an initial assigned rating of 30 percent, effective June 2014. In his appeal to the Board, the Veteran declined his right to an optional Board hearing. No subsequent request for a hearing has been received. Entitlement to an initial rating in excess of 30 percent for a trauma related disorder claimed as PTSD Legal Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Trauma related disorders are included in diagnostic code 9413. All mental disorders are rated under the general rating formula for mental disorders. 38 C.F.R. § 4.130. The Veteran is currently rated at 30 percent. The rating criteria provide that a 30 percent evaluation is warranted 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). A 50 percent rating is warranted 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 and difficulty in establishing effective work and social relationships. 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 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 worklike setting); inability to establish and maintain effective relationships. 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 and memory loss for names of close relatives, own occupation, or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, 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 the examination. When evaluating the level of disability 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. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Facts and Analysis The Veteran contends that he is entitled to a rating in excess of 30 percent. Specifically, the Veteran reports that his condition has good days and bad days, he still has nightmares more than twice a week, has panic attacks and has severe anxiety more than five to six times a week and experiences feelings of low motivation. He further alleges that sometimes his bad mood affects his relationship with his wife. The Veteran also reports that he has resorted to drinking alcohol so that he does not have to remember the dreams that he has and that he is not the same person as he was before his military service. With respect to treatment, the Veteran reports that his medication and therapy help but do not fully alleviate his symptoms. He also alleges that as a result of his insomnia and panic attacks he lost his job in early 2016. See May 2016 Form 9. The Board notes that in his March 2015 NOD, the Veteran asserted that he should be evaluated as having posttraumatic stress disorder based on a diagnosis in the military. As indicated above, mental disorders are rated under a general rating schedule, regardless of the specific disorder diagnosed. Accordingly, even if a diagnosis of posttraumatic stress disorder were appropriate, the Veteran would be evaluated under the same rating formula as he is currently rated under. Based on the evidence of record, the Board finds that an initial evaluation of 50 percent, but not higher, for the Veteran’s service-connected psychiatric disorder is warranted. The Board finds that the evidence establishes that the Veteran’s panic attacks and disturbances of motivation are of such frequency and severity as to approximate the criteria for a 50 percent evaluation. The Board finds that the Veteran’s psychiatric symptoms do not, in nature, frequency or severity, more nearly approximate the criteria for a 70 or 100 percent rating. Post service, the Veteran began receiving VA treatment in August 2011. Following his initial assessment, the Veteran was diagnosed with adjustment disorder and prescribed medication for his sleep and mood disturbance in September 2011. At a follow up appointment in November 2011 the Veteran reported doing well with his medications which were continued with no changes. During a March 2012 examination, the Veteran reported that his medication was no longer working for his mood or anxiety. Notwithstanding his symptoms, the Veteran reported that he was able to finish his semester in school with good grades. In August 2012 the Veteran endorsed symptoms of panic attacks two to three times per week and difficulty being around others. He also endorsed symptoms of difficulty sleeping, feeling bad about himself more than half the days, moving slowly more than half the days and trouble concentrating mostly every day. He alleged that these problems made it somewhat difficult for him to work. Based on his symptoms, the Veteran scored in the range of minor depression or major depression mild in severity. The record contains no evidence of mental health treatment in 2013 and the Veteran has not alleged receiving treatment in 2013. In June 2014, the Veteran reported that his new medication made him more sociable and talkative. The Veteran denied feelings of depression or symptoms of suicidal or homicidal ideations. In July 2014, the Veteran was started on a trial of two other medications. He reported that he was sleeping ok, and denied having ideations or hallucinations. In August 2014, after reporting an increase in his anxiety, the Veteran was prescribed another medication. In September 2014, the Veteran reported that his anxiety resolved over 90 percent of the time. He also reported exercising six time per week and that he enjoyed playing his guitar. The record contains another gap in treatment with no subsequent evidence until July 2015, when the Veteran reported that his anxiety was under control until he learned of an attack on Marines in Chattanooga. The Veteran reported that despite his increased anxiety he was able to control it with techniques. He reported that he was having fun working on his degree in criminal justice and also reported recently marrying his girlfriend of three years. The Veteran reported that overall, he felt stable on his medication. The Veteran continued to report his symptoms as controlled in September 2015, and denied any changes in sleep, loss of interest in activity, changes in libido, guilt issues, change in energy level, change in ability to concentrate or in appetite. The Veteran also denied experiencing nightmares, anxiety attacks, audiovisual hallucinations or suicidal or homicidal ideations. Treatment records for 2016 show no more than ongoing medication management for the Veteran’s mental health, with the Veteran being treated with Clonazepam. The record contains no subsequent treatment records. Overall the Veteran’s treatment records show that the Veteran has some mental health symptoms but they have been controlled with medication management. The Veteran was afforded a VA examination in August 2014. The Veteran endorsed symptoms of anxiety, disturbance of motivation and mood, hypervigilance, exaggerated startled response, problems with concentration, sleep disturbance, avoidance of or efforts to avoid distressing memories, and avoidance of or efforts to avoid external reminders that arouse distressing memories and thoughts or feelings about or closely associated with traumatic events. Following an evaluation, the examiner opined that the Veteran’s symptoms of PTSD did not comply with a diagnosis of PTSD as defined by DSM-IV or the DSM 5, however the Veteran’s symptom constellation was best diagnosed as other specified trauma and stressor related disorder and ADHD. The examiner noted that most of the Veteran’s symptoms were related to his trauma disorder and opined that the Veteran 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 evidence shows that the Veteran’s psychiatric disorder is largely controlled by medication, with some symptoms of panic attacks and motivation disturbance still present. The evidence does not show that the panic attacks are near constant. Nor does the evidence show that his psychiatric disability is manifested by symptoms of the nature, frequency or severity contemplated by the criteria for a 70 or 100 percent rating. For example, the Veteran does not experience suicidal thoughts, impaired impulse control, speech abnormalities or bizarre behavior, or hallucinations or delusions. Socially, the Veteran has been able to complete classes in criminal justice, enjoy hobbies such as playing guitar and marry his girlfriend of three years. Further, the VA examiner noted that the Veteran’s mental health symptoms as mild or transient. Based on this evidence, the Veteran is not entitled to a rating in excess of 50 percent. On his Form 9, the Veteran alleged that as a result of his mental health symptoms he lost his job in 2016. Given that there is no other evidence to support that he was fired because of psychiatric impairment, and as the record shows that his panic symptoms are largely controlled by medication, and in light of the VA examiner’s conclusion that the Veteran’s psychiatric impairment is relative mild, the Board finds that the preponderance of the evidence does not establish that the Veteran’s psychiatric disorder was responsible for his job loss, or that his psychiatric disorder is otherwise productive of total occupational impairment. Accordingly, based on the evidence of record, the Board finds that the Veteran is entitled to a rating of 50 percent, but not higher, for his psychiatric disorder. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Wimbish, Associate Counsel