Citation Nr: 18161071 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 14-04 048 DATE: December 28, 2018 ORDER From November 17, 2011 to May 21, 2014, a 50 percent rating, from May 22, 2014 to May 13, 2018, a 70 percent rating, and from May 14, 2018 a 100 percent rating, for other specified trauma and stressor related disorder (previously, anxiety disorder not otherwise specified (NOS)) is granted, subject to the laws and regulations governing the payment of monetary benefits. REFERRED As an October 2018 physician raised a question regarding the Veteran’s competency, the issue of whether the Veteran is competent for Department of Veterans Affairs (VA) benefits purposes to handle the disbursement of VA funds is referred to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. Prior to May 22, 2014, the Veteran’s service-connected psychiatric disorder was productive of no more than occupational and social impairment with reduced reliability and productivity, but not a greater level of severity. 2. From May 22, 2014 to May 13, 2018, the Veteran’s service-connected psychiatric disorder was productive of no more than occupational and social impairment, with deficiencies in most areas. 3. From to May 14, 2018, the Veteran’s service-connected psychiatric disorder is manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. From November 17, 2011 to May 21, 2014, the criteria for a 50 percent rating, but no higher, for other specified trauma and stressor related disorder (previously, anxiety disorder NOS) have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.126, 4.130, Diagnostic Code 9413. 2. From May 22, 2014 to May 13, 2018, the criteria for a 70 percent rating, but no higher, for other specified trauma and stressor related disorder (previously, anxiety disorder) have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.126, 4.130, Diagnostic Code 9413. 3. From to May 14, 2018, the criteria for a 100 percent schedular disability rating for other specified trauma and stressor related disorder (previously, anxiety disorder) have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.126, 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1967 to December 1969. The Veteran appealed a November 2017 decision of the Board of Veterans’ Appeals (Board) to the United States Court of Appeals for Veterans Claims (Court) to the extent that the Board denied entitlement to an initial evaluation in excess of 30 percent for anxiety disorder NOS. Pursuant to a Joint Motion for Remand (JMR), the Court, in a July 2018 Order, vacated the Board’s November 2017 decision (as to the matter of an increased evaluation for anxiety disorder NOS) and remanded the matter to the Board to ensure that adequate reasons or bases are provided to the Veteran. In an April 2018 rating decision, the Veteran’s service-connected psychiatric disorder was recharacterized as other specified trauma and stressor related disorder (previously, anxiety disorder). The Board notes further that to the extent that the Court directed the Board to adequately address additional psychiatric diagnoses of record other than anxiety such as posttraumatic stress disorder and dysthymic disorder, the Board finds that the evidence of record does not sufficiently distinguish the symptoms of any other diagnosed psychiatric disorder from his service-connected other specified trauma and stressor related disorder (previously, anxiety disorder NOS). Thus, the Board's instant discussion attributes all of the Veteran's mental health symptoms to his service-connected disorder. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Entitlement to an evaluation in excess of 30 percent for other specified trauma and stressor related disorder (previously, anxiety disorder NOS) Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The regulations for rating mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that the Veteran’s service-connected psychiatric disorder is evaluated under Diagnostic Code 9413 which is rated according to the General Rating Formula for Mental Disorders. A 30 percent rating is provided 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 provided 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is provided 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 provided 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. §§ 4.125-4.130. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that his psychiatric symptoms have worsened and more closely approximate a higher rating. In February 2012 the Veteran underwent a VA examination for post-traumatic stress disorder (PTSD). The Veteran was diagnosed with anxiety disorder NOS. He did not meet the full criteria for a diagnosis of PTSD. The examiner opined that the Veteran had a formally diagnosed mental condition, but symptoms were not severe enough either to interfere with occupational or social functioning or to require continuous medication. The Veteran denied that his psychological symptoms had impaired his ability to function socially. He was noted to have been married for 43 years and have friends. He worked as an independent insurance agent for 24 years and had various other jobs afterward. He reported being fired from some of those jobs; however, he denied poor performance at any of those jobs or any impairment in functioning due to his mental health symptoms. He denied that his mental health symptoms result in any occupational impairment. Although he retired in 2007 or 2008, he stated that, if he were working today, he could “perform any job [he was] qualified to do right now.” Examination revealed that the Veteran experienced depressed mood and chronic sleep impairment. No impairment to memory was observed. Social work notes from 2013 state that the Veteran reported symptoms of nightmares and flashbacks. His spouse reported that the Veteran was violent during dreams. He consistently denied suicidal or homicidal ideation. A January 2014 social work note indicated that the Veteran reported periods of irritability, nightmares, and violent tendencies toward his spouse. However, engaging in activities such as bowling, going to church, and talking to other veterans helps him manage his symptoms. In his February 2014 substantive appeal, the Veteran reported that he could no longer work due to his anxiety. A March 2014 clinical note stated that the Veteran reported being able to sleep through the night on a good night, and waking up eight times on a bad night, with sweating, anxiousness, and movement. He reported bowling, spending time in nature, and listening to music as outlets for his anxiety. He denied suicidal or homicidal ideation. He declined PTSD group therapy because he did not want to be around the negativity of other participants. A May 2014 letter from Dr. E.W.H., a private clinician, stated that the Veteran experienced nightmares three to four times per week and woke in panic and sweat. Flashbacks occurred twice weekly, while panic attacks occurred three to four times per week. He averaged three to four hours of sleep per night. Intrusive thoughts, exaggerated startle response, and hypervigilance were also noted. Dr. E.W.H. opined that the Veteran’s recent memory was moderately impaired and his working memory was 60 percent impaired. He opined that the Veteran’s prefrontal cortex was dysfunctional because anger, sadness, and fear came upon the Veteran without his understanding 50 percent of the time. Hallucinations and illusions, including hearing his name called, hearing cars drive up, and seeing shadows move, were reported. He felt depressed 60 percent of the time, experienced frequent crying spells, and was easily angered and irritated. Helplessness and suicidal ideation were also noted. Thus, Dr. E.W.H. opined that the Veteran was moderately compromised in his ability to sustain social relationships and was unable to sustain work relationships; therefore, he was permanently and totally disabled and unemployable. It was noted that the Veteran had retired in 2008, had been married for 45 years, and occasionally socialized with friends. In August 2015, Dr. E.W.H. stated that the Veteran experienced nightmares seven to ten times per week, and woke in sweat and panic. Flashbacks occurred four to five times per week, panic attacks occurred once per week, and he slept five to six hours per night. He had intrusive thoughts, was startled easily, and was hypervigilant. Recent memory was severely impaired and working memory was 75 percent impaired. The physician opined that the Veteran’s prefrontal cortex was dysfunctional because anger, sadness, and fear came upon the Veteran without his understanding 80 percent of the time. Hallucinations and illusions, including hearing his name called, hearing cars drive up, and seeing shadows move, were reported. He felt depressed most of the time, had low energy, little interest in activities, and was angered easily. Dr. E.W.H. opined that the Veteran was moderately compromised in his ability to sustain social relationships and was unable to sustain work relationships; thus, he was permanently and totally disabled and unemployable. It was noted that he retired in 2008, had been married for 46 years, and occasionally socialized with friends. In October 2016, the Veteran reported that he was doing “much better,” particularly because his CPAP machine allowed him to sleep seven to eight hours per night and feel more rested, more motivated, and less irritated. The Veteran was afforded a VA examination in February 2017. The claims file was reviewed. The examiner found that there was no evidence of clinically significant negative alterations in cognitions and mood. As the Veteran was previously diagnosed with anxiety disorder NOS under DSM-IV criteria in 2012, this VA examiner explained that the current diagnosis of other specified trauma- and stressor-related disorder, subthreshold PTSD, was simply a change in nomenclature in accordance with DSM-5 criteria. The examiner opined that the Veteran’s symptoms were transient to mild, with mild impairment in daily functioning. It was observed that the Veteran had successfully implemented coping strategies, including bowling. He reported being judged by others as very approachable and that he worked successfully as an insurance salesman for more than two decades without notable difficulty. The Veteran reported occasional thoughts that he would be better off “not here.” The examiner found that Dr. E.W.H.’s opinion that the Veteran was permanently and totally disabled, unemployable, and had severe memory problems was unsupported based on the examination. The Veteran presented without any immediately observable memory deficits and made no reference to any significant memory problems. He had clinically significant distress, secondary to nightmares of past trauma, engaged in avoidance, and quickly became emotional when discussing past trauma. The examiner opined that the Veteran’s occupational and social impairment was 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. It was noted that the Veteran’s recent diagnosis and treatment for obstructive sleep apnea had significantly improved his sleep impairment, indicating that such symptoms had been due to the apnea rather than the service-connected psychiatric disability. In addition, the Veteran reported having friends and having a fairly stable relationship with his wife. In a May 2018 statement, the Veteran noted that he had the following symptoms: anger, anxiety, chronic sleep problems, danger of hurting self or others, delusions, depression, difficulty making decisions, emotional numbing, flashbacks, guilt, hallucinations, inability to make and keep friends, inappropriate behavior, intrusive thoughts, isolation, lack of emotions, lack of self-esteem, memory loss, panic attacks, overly concerned with personal hygiene, sense of helplessness, suicidal thoughts, and suspiciousness. An October 2018 VA mental health treatment note indicated that the Veteran had passive suicidal thoughts. He was alert, oriented to time, place, person, and situation. Affect was somewhat depressed. His memory was good for short-term and remote. Speech was coherent, appropriate, and relevant. The Veteran was diagnosed with PTSD and major depressive disorder (MDD). His psychiatric medications were adjusted. In October 2018, the Veteran underwent a disability benefits questionnaire (DBQ) for PTSD examination and was diagnosed with PTSD and MDD. The Veteran reported experiencing numerous traumas in the military, losing numerous jobs, and a history of not appearing in court for child support hearings. His symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impaired judgement, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, suicidal ideation, and a persistent danger of hurting self or others. The physician found that the Veteran was not capable of managing his financial affairs and that his daughter helped with all financial matters. In affording all reasonable doubt, the Board therefore finds that a 50 percent rating is warranted from November 17, 2011 to May 21, 2014, a 70 percent rating is warranted from May 22, 2014 to May 13, 2018 and a 100 percent rating is warranted from May 14, 2018. However, an even higher 100 percent rating is not warranted prior to May 14, 2018 because at no time did the Veteran exhibit 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. The evidence reflects that prior to May 22, 2014, the Veteran’s symptoms due to his service-connected anxiety disorder NOS with major depressive disorder included recurrent nightmares related to his experiences during war, flashbacks, anxiety attacks, depressed mood, chronic sleep impairment, and periods of irritability. The record does not reflect that the Veteran has demonstrated the symptoms associated with a 70 percent rating, or other symptoms of similar severity, frequency, and duration prior to May 22, 2014. Prior to May 22, 2014, the preponderance of the evidence showed that the Veteran had adequate insight, judgement, speech, and impulse control. He was oriented to person, place, and date. Also, he had good hygiene and presented with good affect. He reported no suicidal or homicidal thoughts, delusions, or hallucinations. Also, no obsessional rituals, 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, difficulty in adapting to stressful circumstances (including work or a worklike setting), and inability to establish and maintain effective relationships were noted. Although the Veteran endorsed moderate and severe memory deficiencies as well as hallucinations during his May 2014 and August 2015 private psychiatric examinations, the hallucinations were not noted to be persistent, nor were his memory deficits to a degree that he forgot names of close relatives, his own occupation, or his own name. Further, the May 2017 VA examiner found that Dr. E.W.H.’s opinion that the Veteran had severe memory problems was unsupported based on the VA examination findings. The Veteran presented without any immediately observable memory deficits and made no reference to any significant memory problems. In viewing the criteria for the various rating levels, the Veteran’s symptoms more nearly approximate the criteria for a 70 percent rating from May 22, 2014 to May 13, 2018. The Board has considered the totality of the Veteran’s symptoms as well as their frequency, severity, and duration. VA examination reports have indicated that the overall level of functioning is compatible with a 10 percent rating; however, the Veteran has consistently exhibited some symptoms which are more compatible with a 70 percent rating, such as suicidal ideation, depression affecting his ability to function, and his difficulty in adapting to stressful circumstances such as hypervigilance. These symptoms are not contemplated within a 50 percent rating and indicate a more severe disability picture. The Board notes that the Veteran endorsed suicidal ideation and near-continuous depression affecting his ability to function as early as May 2014. Accordingly, the Board finds that a 70 percent rating is met from May 22, 2014 to May 13, 2018, but no higher. Based on a careful review of the subjective and clinical evidence, the Board finds that a 100 percent rating is warranted for anxiety disorder NOS from May 14, 2018, as the Veteran’s symptoms resulted in the type of occupational and social impairment associated with a 100 percent disability rating. The evidence reflects that the Veteran had suicidal ideation, delusions, hallucinations, inappropriate behavior, intrusive thoughts, memory loss, and demonstrated a persistent danger of hurting self and others. Given the symptoms and the impairment of the Veteran’s occupational and social functioning, the Board finds that the Veteran’s acquired psychiatric conditions more nearly approximated total occupational and social impairment from May 14, 2018. Accordingly, entitlement to a 100 percent rating for anxiety disorder NOS is warranted from May 14, 2018. 38 U.S.C. § 5107 (b). In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran’s claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports a 50 percent rating for the Veteran’s service-connected psychiatric disorder from November 17, 2011 to May 21, 2014, a 70 percent rating from May 22, 2014 to May 13, 2018 and a 100 percent rating is warranted from May 14, 2018, but a preponderance of the evidence is against a rating in excess of 50 percent prior to May 22, 2014 and a rating in excess of 70 percent prior to May 14, 2018. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Costello, Associate Counsel