Citation Nr: 18144275 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 17-28 093 DATE: October 25, 2018 ORDER Entitlement to a 50 percent rating for other specified trauma and stressor related disorder with adjustment disorder, anxiety, and depressed mood (herein acquired psychiatric disability) is granted for the entire appeal period. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected lumbar degenerative disease with facet joint degenerative changes at L2-L3, is remanded. FINDING OF FACT Throughout the appeal period, the symptoms of the acquired psychiatric disorder have most closely approximated those contemplated by a 50 percent rating. CONCLUSION OF LAW The criteria for entitlement to a 50 percent rating for acquired psychiatric disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9410, General Rating Formula for Mental Disorders (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from October 1969 to September 1971. As discussed in the Remand below, additional periods of service may also qualify. 1. Increased Rating for Acquired Psychiatric Disorder In determining the severity of a disability, the Board applies the criteria set forth in the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned. 38 C.F.R. § 4.7. In this case, the Veteran has been assigned a 30 percent rating under DC 9410 since the effective date of service connection on June 22, 2015. 38 C.F.R. § 4.130, DC 9410, General Rating Formula for Mental Disorders; October 2015 Codesheet. The Veteran generally contends that the severity of his impairment is greater than contemplated by his 30 percent rating. See December 2015 Notice of Disagreement (NOD) with attachments; May 2017 VA Form 9. A 30 percent rating contemplates 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; and/or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9410, General Rating Formula for Mental Disorders. A 50 percent rating contemplates 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/or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating contemplates 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); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating contemplates 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/or memory loss for names of close relatives, own occupation, or own name. Id. A July 2014 new patient assessment from Dr. EWH revealed: nightmares (since 1979 or 1980, occurring 1 to 2 times per week with waking in panic for 3 to 5 minutes); flashbacks (1 to 2 times per week at night); panic attacks (3 to 4 times per week, lasting 10 to 15 minutes each); impaired sleep (averages 5 to 6 hours of sleep per night and wakes up 4 to 5 times per night with night sweats 2 to 3 times per week); hypervigilance (does not like people behind him); intrusive thoughts (sometimes); socialization with wife, church, and lodge (occasional); memory problems (room to room [often], misplacing [often], forgetting what he is told [often], and getting lost while driving [sometimes, uses GPS]); auditory and visual hallucinations (hears name [occasionally], hears cars drive up [sometimes], hears footsteps or noises in the house [sometimes], sees shadows moving [sometimes], sees animals [occasionally]); decreased energy (6 on a scale of 1 to 10); decreased interest (8 on a scale of 1 to 10); sadness out of the blue (5 on a scale of 1 to 10); fear out of the blue (4 on a scale of 1 to 10); depression (7 on a scale of 1 to 10); anger out of the blue (7 or 8 on a scale of 1 to 10); agitation or anger (3 on a scale of 1 to 10); mood swings (5 on a scale of 1 to 10); worry (7 on a scale of 1 to 10); racing and jumping thoughts (6 on a scale of 1 to 10); crying spells 3 (on a scale of 1 to 10); decreased ability to learn new things (7 on a scale of 1 to 10); and suicidal (2 on a scale of 1 to 10). In an August 2014 letter, Dr. EWH elaborated on the symptoms revealed during the July 2014 assessment by further revealing: severe impairment of recent memory (cannot remember what he reads, gets lost when traveling, 30 percent impairment of working memory); dysfunctional prefrontal cortex (anger, sadness, and fear come upon him without his understanding 55 percent of the time); depression with low energy (70 percent of the time); crying spells (occasionally); angers and agitates (occasionally); feeling helpless and suicidal (at times); and mildly compromised in ability to sustain social and work relationships. Dr. EWH began a treatment plan of: Trazadone (to block nightmares and give restful sleep), Klonopin (to block flashbacks and panic attacks and reduce anxiety levels), Wellbutrin (to relieve depressive symptoms); and continued cognitive, behavioral psychotherapy. A December 2014 visit note from Dr. EWH revealed that the medications were helping, but that the Veteran still had: nightmares (occasional); flashbacks (occasional); night sweats (seldom); impaired short-term memory (same severity as before, with inability to follow commands/requests). A June 2015 visit note from Dr. EWH revealed that the medications were helping, but that the Veteran still had: nightmares (occasional); night sweats (occasional); impaired short-term memory (same severity as before, with inability to follow commands/requests). In October 2015, the Veteran was afforded a VA mental disorders examination, which revealed: occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation; mild memory loss (such as forgetting names, directions, or recent events); disturbances of motivation and mood (depressed mood, chronic anxiety with brief episodes of acute anxiety around once per month, excessive worrying); low energy; some difficulty concentrating and making decisions; irritability; mental blanking (frequent); “pretty good” social life; and sleep apnea (not service-connected) which, when untreated, can produce issues that mimic or compound symptoms of depression and anxiety. A December 2015 visit note from Dr. EWH revealed that the medications were helping, but that the Veteran still had: nightmares (occasional); night sweats (monthly); impaired short-term memory (same severity as before, with inability to follow commands/requests); and anger and depression (same levels as before). Throughout the appeal period, the symptoms of the acquired psychiatric disorder have most closely approximated those contemplated by a 50 percent rating. The Board finds Dr. EWH’s treatment records to be of higher probative value than the October 2015 examination because Dr. EWH interacted with the Veteran on multiple occasions spanning more than one year. Among the 50 percent rating criteria, the evidence shows: panic attacks more than once per week; difficulty in understanding complex commands; impaired memory; impaired judgment; disturbances of motivation and mood; and difficulty maintaining social relationships. Although treatment notes document hallucinations and suicidal thoughts, the evidence does not indicate that the hallucinations were persistent (documented in the July 2014 note as occasional) or that the suicidal thoughts created a persistent danger to self or others, such that a higher rating may be warranted. Additionally, the evidence does not indicate other criteria contemplated by ratings higher than 50 percent, such as: 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; spatial disorientation; neglect of personal appearance and hygiene; inability to establish and maintain effective relationships; gross impairment in thought processes or communication; grossly inappropriate behavior; 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. Thus, a 50 percent rating, but no higher, is warranted for the entire appeal period. REASONS FOR REMAND 1. Service Connection for Hypertension The DD Form 214 lists active duty service from October 1969 to September 1971. However, military personnel records show a lengthy period of Army National Guard service (1983 to 2003), during which the Veteran was awarded active duty points on several occasions. See May 2003 Army National Guard Retirement Points History Statement (active duty points awarded from: October 22, 1969, to October 21, 1970; October 22, 1970, to September 10, 1971; December 14, 1983, to December 13, 1986; April 1, 1987, to December 13, 1998; and December 14, 1999, to December 13, 2002). If these active duty points were awarded for periods of active duty or active duty for training (ACDUTRA), then they are also periods of qualifying service. Crucially, service medical records and VA treatment records indicate possible hypertension onset in the 1980s, during National Guard service. See October 2000 examination (high blood pressure; hypertension controlled with Adalat); November 2002 medical certificate (Adalat for high blood pressure); September 2015 VAMC Report (hypertension since the 1980s). It is imperative to verify whether the Veteran had any active duty or ACDUTRA service while in the Army National Guard, and, if so, obtain an addendum opinion that discusses etiology in relation to all qualifying service periods. The matter is REMANDED for the following action: 1. Verify whether the Veteran had any active duty or ACDUTRA service while in the Army National Guard, and, if so, obtain an addendum opinion that discusses etiology in relation to all qualifying service periods. See May 2003 Army National Guard Retirement Points History Statement (active duty points awarded from: October 22, 1969, to October 21, 1970; October 22, 1970, to September 10, 1971; December 14, 1983, to December 13, 1986; April 1, 1987, to December 13, 1998; and December 14, 1999, to December 13, 2002). 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel