Citation Nr: 18156061 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 18-46 811 DATE: December 6, 2018 ORDER An initial rating in excess of 30 percent for other specified trauma and stressor-related disorder is denied. FINDING OF FACT For the entire appeal period, the Veteran’s other specified trauma and stressor-related disorder is manifested by psychiatric symptomatology resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task, without more severe manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for other specified trauma and stressor-related disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9410. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1963 to March 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in April 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an initial rating in excess of 30 percent for other specified trauma and stressor-related disorder. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran’s service-connected other specified trauma and stressor-related disorder is evaluated as 30 percent disabling as of the February 2, 2015, date of service connection pursuant to DC 9410, which provides that such disability is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. A 30 percent 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). Id. A 50 percent 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 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. Id. 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 irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when 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. Id. The United States Court of Appeals for the Federal Circuit has held that the 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” under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, 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.” Vazquez-Claudio, 713 F.3d at 117-118; 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,” and 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 the examination.” 38 C.F.R. § 4.126(a). The Board notes that the revised DSM-5, which, among other things, eliminates GAF scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug, 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, No. 16-1208 (February 23, 2018). After considering the totality of the evidence of record, the Board finds that an initial rating in excess of 30 percent for the Veteran’s other specified trauma and stressor-related disorder is not warranted. In this regard, for the entire appeal period, such disability is manifested by psychiatric symptomatology resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task, without more severe manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. In this regard, in January 2017 and May 2017 correspondence, the Veteran reported that he was struggling to cope with guilt, remorse, distress, and depression related to his in-service stressor, and reported symptoms of anger, anxiety, chronic sleep problems, delusions, depression, difficulty making decisions, emotional numbing, flashbacks, guilt, hallucinations, inappropriate behavior, lack of emotions, lack of self-esteem, memory loss, neglect of personal hygiene, panic attacks, problems with communication, problems getting along with people, inability to share feelings, and a sense of helplessness. However, he did not endorse being a danger to himself or others, an inability to make and keep friends, neglecting family, having no friends, periods of violence, or suicidal feelings/ thoughts. Moreover, while the Veteran reported inappropriate behavior, neglect of personal hygiene, panic attacks, and problems with communication in the foregoing statements, such symptoms are not supported by his contemporaneous VA treatment records. In this regard, such are entirely negative for any complaints or observations regarding such impairments. Furthermore, such show that the Veteran maintains his hygiene and has no problems with communication, and panic attacks are never reported. Rather, such reflect the Veteran’s reports of irritability and anger, depression, nightmares, difficulty sleeping, avoidance, flashbacks, intrusive memories, hypervigilance, emotional numbing, short-term memory difficulties, and audio and visual hallucinations. Moreover, mental status examinations conducted in connection with the Veteran’s VA treatment reflect that he is alert and oriented times three, responds appropriately during conversation, maintains good eye contact, follows commands without difficulty, has fluent speech, is able to sustain concentration, has good insight and judgment, and maintained grooming and hygiene. Furthermore, he has denied suicidal and homicidal ideation. Such also show that he has been married to his current spouse, with whom he is emotionally close, since 1989 and maintains a relationship with all four children. Further, it was noted that the Veteran retired as a carpet layer in 2009 because the work was physically taxing and he was unable to complete tasks as easily as he could when he was younger. Furthermore, upon VA examination in April 2018, the examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. Upon mental status examination, it was observed that the Veteran had fairly good grooming and hygiene, appeared alert and oriented, made good eye contact, was pleasant and cooperative, showed no signs/symptoms of thought disorder, mood and affect appeared euthymic, and he denied and did not demonstrate symptoms of suicidal ideation, homicidal ideation, mania/hypomania, or psychosis during the examination. With respect to the Veteran’s social functioning, the examiner noted that his marriage was good and he had a good/close relationship with all four children and three grandchildren. Further, while he had no close friends, he maintained a few casual friendships. As relevant to his occupational functioning, it was observed that he retired as a carpet layer in 2009 due to the physical demands of the job, The examiner further found that the Veteran had chronic moderate symptoms of inappropriate guilt, mood disturbance, sleep disturbance, anxiety, jumpiness, irritability, agitation, recurrent stressor-related nightmares and memories/thoughts, avoidance of stressor-related remainders/triggers, which resulted in marked distress, but only mild impairment in functioning primarily due to mood symptoms, sleep disturbance/fatigue, irritability, and social avoidance. In this regard, the examiner found that the Veteran’s psychiatric disability resulted in 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, which is consistent with a 10 percent rating under the General Rating Formula. Based on the foregoing, the Board finds that the Veteran’s psychiatric symptomatology, including but not limited to such listed above, are not of a nature, frequency, severity, or duration to result in occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. In this regard, the Board is cognizant that the Veteran has reported symptoms of disturbances of motivation and mood, which is indicative of a 50 percent rating, and delusions or hallucinations, which is indicative of a 100 percent rating. However, the evidence does not show that such symptomatology is of a frequency, severity, or duration to result in impairment in excess of that associated with his currently assigned 30 percent rating. In this regard, the Veteran has maintained a good and close relationship with his current spouse since 1989, his four children, and his three grandchildren. Furthermore, while he does not have close friends outside of his family members, he does maintain a few casual friendships. While the Veteran is currently retired, the record reflects that such is the result of the physical demands of the job rather than any inference due to his psychiatric symptomatology. Moreover, the April 2018 VA examiner considered the totality of the Veteran’s reported psychiatric symptomatology, to include such explicitly detailed at the examination and such noted in his VA treatment records, and found that such resulted in, at most, 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, which, as noted above, is consistent with a 10 percent rating under the General Rating Formula. Therefore, based on the foregoing, the Board finds that the totality of the Veteran’s psychiatric symptomatology is contemplated in his currently assigned 30 percent rating and, therefore, a higher initial rating for his other specified trauma and stressor-related disorder is not warranted. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected other specified trauma and stressor-related disorder; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, in connection with the instant initial rating claim. Doucette v. Shulkin, 28 Vet. App. 366 (2017), (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s initial rating claim. As such, that doctrine is not applicable in the instant appeal, and his increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany Alston, Associate Counsel