Citation Nr: 18161136 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-59 639 DATE: December 28, 2018 ORDER An initial disability rating higher than 30 percent prior to September 16, 2016, for anxiety, now rated as posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT Prior to September 16, 2016, the Veteran’s acquired psychiatric disorder, was manifested by the symptoms of difficulty falling or staying asleep, irritability or outbursts of anger, hypervigilance, and exaggerated startle response, which was productive of occupational and social impairment which decreases work efficiency and ability to perform occupational tasks only during periods of significant stress. CONCLUSION OF LAW Prior to September 16, 2016, the criteria for an initial rating higher than 30 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.126, 4.130, Diagnostic Codes 9411, 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from August 2004 to June 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Characterization of Claim as Increased Rating Disability evaluations are determined by the application of the VA 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. Psychiatric disabilities are evaluated based on the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Currently, the Veteran’s acquired psychiatric condition, to include anxiety and PTSD, is rated under Diagnostic Code (DC) 9411. The Veteran has been rated at 70 percent from September 16, 2016. The condition was initially rated under DC 9413, unspecified anxiety disorder, from June 2011 to September 2016, the date of a VA examination in which a new diagnosis of PTSD was rendered, and a new rating of 70 percent was provided. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126. In this case, both anxiety and PTSD are evaluated under the same rating criteria found in 38 C.F.R. § 4.130. Although the Veteran has characterized the claim as one for an earlier effective date for the 70 percent rating, the Board has determined that the case is more accurately described as a claim for an increased rating. The RO granted service connection for an acquired psychiatric disorder as of June 2011. The specific effective date granted in this case was the day following separation from active duty because the claim was received within one year of active service. See 38 U.S.C. § 5110(b)(1). The Veteran has not requested an effective date earlier than this, but wishes to have his current, 70 percent rating effective for the entire timeframe on appeal. Although the Board is normally required to presume the Veteran is seeking the highest possible rating for both rating stages, in a November 2016 VA Form 9, the Veteran stated that he is appealing “the date of increase of disability ratings” and that “I am satisfied with my overall rating and would just like to be back paid from my initial claim date” Because the Veteran has specifically limited the appeal period to the first stage in which the disability rating was 30 percent by expressing his satisfaction with the 70 percent rating, the Board is not evaluating a rating in excess of 70 percent for the second stage. See AB v. Brown, 6 Vet. App. 35, 39 (1993). 2. Entitlement to an Increased Rating For psychiatric claims, a 30 percent disability evaluation is contemplated 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). The next highest rating is 50 percent. This rating is contemplated 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. The next highest rating is 70 percent. This rating is contemplated 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. Finally, the highest disability rating of 100 percent is contemplated 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; peristent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation of time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9413. The use of the term “such as” in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Id. The United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In February 2013, the Veteran underwent an initial VA PTSD examination. The examiner noted a combat-related stressor in which the Veteran witnessed the death of a friend while deployed to Iraq. Persistent symptoms included difficulty falling or staying asleep, irritability, hypervigilance, and exaggerated startle response. The examiner stated the presence of “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 Veteran had a good relationship with his parents and siblings. He was married to the same woman, and had three children. He reported that his marriage was “good.” He had five close friends with whom he had contact, and he participated in activities such as playing the guitar. He reported he was a full-time student and had just started a new job. He described that upon returning from deployment, he endorsed anger and would scream at his wife. He would self-medicate with alcohol and would do anything to cope. He underwent treatment, but denied any current treatment for his symptoms. He endorsed current sleep impairment and nightmares; recollections of the traumatic events, avoidance, and anxiety. The examiner found that the Veteran did not meet the full criteria for PTSD, but he met the criteria for an anxiety disorder. He had a good social support and social life. During service, the Veteran received treatment for major depression, dysthymia, and adjustment disorder. In July 2013, a VA examiner provided the opinion that the Veteran’s current anxiety condition was the same diagnosis as the in-service dysthymia. Treatment records following service are consistent with the VA examinations of record. Further, the Veteran denied seeking treatment as he wanted to keep his security clearance, but had a history of unofficial therapy following his deployment, while still in the Army. He endorsed problems with irritability, impatience, feeling overwhelmed at times, as well as intermittent insomnia. A 2011 record documented the Veteran’s reports of flashbacks, nightmares, irritability, hypervigilance, and anxiety. The treating clinician at that time noted that the PTSD symptoms had been improving. There are also treatment records showing negative depression and PTSD screenings. The most probative evidence of record prior to September 16, 2016, does not show that the Veteran’s anxiety reached the level associated with a higher, 50 percent rating. To qualify for a higher rating, the Veteran would have to show that his anxiety symptoms caused occupational and social impairment with reduced reliability and productivity. In other words, the most probative evidence of record does not demonstrate symptoms that more closely approximate those associated with a 50 percent rating. No symptoms such as difficulty in understanding complex commands, impaired judgment, or difficulty in establishing and maintaining effective work and social relationships was noted. At the time of the examination, the Veteran reported that he was married, had three children, recently began a new job, and was planning to continue being a full-time student. There was also no report of panic attacks. As described earlier, his occupational and social impairment was described as “mild,” and resulted in “decreased efficiency,” but impairment in the 50 percent rating anticipates “reduced reliability” beyond mild or transient symptoms. Further, he had a good relationship with his family and friends. In the November 2014 notice of disagreement, the Veteran stated, “I suffer from short term memory loss, impaired judgment, and disturbances of motivation and mood.” These symptoms are examples provided in the 50 percent rating criteria, but it is again noted that the rating schedule provides guidelines and examples and that the entire record must be considered to determine the level of occupational and social impairment. The anxiety symptoms prior to September 16, 2016, are of a similar severity, duration, and type as those associated with a 30 percent rating—despite his endorsement of some symptoms associated with a 50 percent rating. Although he endorsed some occupational and social impairment, the symptoms were described as “mild or transient,” and they were most analogous to symptoms causing decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. During the February 2013 VA examination, the Veteran reported that he had been a full-time student for two years. Although the record does not provide exact dates of attendance, as of the September 2016 VA examination, the Veteran had completed a bachelor’s degree. The Veteran obtained his degree while also working full-time—despite his reported memory loss and disturbances in motivation. Regarding memory loss, the rating criteria also states, “e.g. retention of only highly learned material, forgetting to complete tasks.” Significant memory loss and disturbances in motivation of this severity would have made completion of a degree unlikely. The lay and medical evidence of record show that between June 2011 and September 2016, the Veteran’s symptoms are of a similar frequency, duration, type, and severity as those symptoms associated with a 30 percent rating. The record reflects “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.” Although the rating for the Veteran’s condition was later increased to 70 percent, the evidence of record first showed increased symptomatology as described during his September 2016 VA examination. The Board understands the Veteran’s belief that a higher rating is warranted because he feels that his condition was more severe than the 30 percent rating assigned, however, the symptoms more nearly approximated those associated with a 30 percent rating and no higher. Although the Veteran experienced anxiety symptoms, he did not demonstrate the level of occupational and social impairment for a higher rating prior to September 16, 2016. An increased disability rating prior to September 16, 2016, is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals J. Jack, Law Clerk Department of Veterans Affairs