Citation Nr: 1817093 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 14-07 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a rating in excess of 10 percent for an unspecified trauma and stressor-related disorder. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel INTRODUCTION The Veteran had active military service from October 1990 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) from the May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. This matter was previously before the Board in December 2016 and was remanded for further development. The Veteran appeared at a September 2015 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. FINDING OF FACT The Veteran's unspecified trauma and stressor-related disorder is manifested by mild or transient symptoms. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for unspecified trauma and stressor-related disorder have not been met. 38 U.S.C.A §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.130 (Diagnostic Code 9410). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2016). The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 199 (1999). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. The Veteran's unspecified trauma and stressor-related disorder is currently rated as 10 percent disabling under diagnostic code 9410. 38 C.F.R. § 4.130. Under this diagnostic code, a 10 percent rating is warranted when there is 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 continuous medication. 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). 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 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 and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when 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); and 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; and memory loss for names of close relatives, own occupation, or own name. Id. In order to be assigned a particular rating, a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The key element for a rating under the General Formula for Mental Disorders is the degree of social and occupational impairment caused by those symptoms. In February 2015, the Veteran underwent a VA examination. As an initial matter, the examiner explained that the Veteran has experienced two specific traumatic events in his life, one during service and one post-service. The examiner stated that the Veteran is currently diagnosed with other specific bipolar and related disorder, unspecified trauma and stressor-related disorder, and alcohol use disorder in sustained remission. The examiner stated that he is able to differentiate the symptoms of the Veteran's multiple diagnoses. The examiner stated that the Veteran's symptoms of unspecific trauma and stressor-related disorder, which the examiner noted is related to the Veteran's military service, include nightmares, emotional reactivity to talking about his in-service stressor, avoidance of talking or thinking about his in-service stressor, and insomnia. The examiner stated that the Veteran's bipolar disorder, which is not related to his military service, is manifested by a depressed mood, some anhedonia, decreased appetite, insomnia, and difficulty concentrating. Additionally, the examiner noted that when the examiner is in a manic episode, he endorses mood lability with expansive mood, increase in goal-oriented behavior and pleasurable activities with potentially dangerous consequences, decreased need for sleep, and racing thoughts. The examiner noted that the only overlap in the Veteran's symptoms between the two disorders is insomnia. The examiner added that the Veteran's alcohol use disorder has been in remission for approximately one and a half years, with no active symptoms present. The examiner opined that the Veteran's level of occupational and social impairment is limited to mild with transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner stated that majority of the Veteran's psychiatric impairment is due to his bipolar disorder and alcohol use disorder, which both resulted in significant impairment in his history. The examiner summarized the Veteran's mental health treatment records and noted that the only trauma related symptoms from the Veteran's in-service stressor are nightmares, difficulty sleeping due to the nightmares, and avoidance of thinking about the trauma. The examiner noted that the Veteran's reported difficulties concentrating due to racing thoughts and variable anhedonia are related to his bipolar disorder. Additionally, the examiner noted that other than prescribing medication for his nightmares, majority of the Veteran's mental health treatment is focused on managing his bipolar disorder symptoms. The examiner stated that it is more likely than not that the vast majority (90%) of his social and occupational impairment from his mental health symptoms in the past was due to his psychosocial stressors (divorce, financial stress, etc.), personality issues from his chaotic childhood, and bipolar disorder symptoms, all of which are unrelated to his military service. The examiner stated that the Veteran's service connected unspecified trauma and stressor-related disorder accounts for 10% of the Veteran's current minimal impairment due to insomnia from his nightmares. Additionally, the Board notes a June 2014 note from a VA physician that stated that the Veteran experiences significant PTSD since his military service including night terrors, hypervigilance, anxiety, and avoidance. However, this was the extent of the statement and did not provide any additional information, to include whether or not any of these symptoms are attributable to the Veteran's other psychiatric diagnosis. Throughout the period on appeal, the Veteran's VA treatment notes detail the Veteran's mental health symptoms including nightmares, difficulty sleeping, intrusive thoughts of trauma account, reactivity to reminders with anxiety and physiological responses, avoidance of thoughts of the trauma, frequent anxiety, difficulty concentrating during exacerbation of other symptoms, and hypervigilance at night. However, these treatment records do not specifically state what mental health diagnosis these symptoms are attributed to. Although the Veteran's VA treatment records note that these symptoms are attributed to the Veteran's trauma disorder, there is no rationale to support this conclusion in the treatment notes, or any discussion about the Veteran's concurrent bipolar diagnosis. The evaluation of a disability in which some of the problems are associated with service, and other are not, is always difficult, and the Board must consider carefully giving the Veteran the benefit-of-the-doubt in these usual situation. However, in this particularly usual case, the Board, based on the evidence of record, can distinguish between the disorder cause by service and the one not cause by service. The Board finds, after reviewing the medical and lay evidence of record, a rating in excess of 10 percent is not warranted. A higher rating of 30 percent is not warranted as the Veteran's symptoms of depressed mood, anxiety, and hypervigilance are attributable to his non-service connected bipolar disorder. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b). VA's Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's appeal for an unspecified trauma and stressor-related disorder arises from his disagreement with the initial rating awarded following the grant of service connection for that disability. Where the initial claim is one for service connection, once service connection has been granted, the claim has been substantiated. Therefore, the initial intended purpose of the notice has been fulfilled and additional VCAA notice under § 5103(a) is not required. Any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, once a notice of disagreement has been filed, for example, contesting a downstream issue such as the initial rating assigned to the disability, only the notice requirements for a rating decision and Statement of the Case described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision. 38 C.F.R. § 3.159(b)(3). Here, the RO provided the Veteran the required Statement of the Case in April 2016. The Statement of the Case cites the applicable statutes and regulations pertaining to his claim. As for the duty to assist, the Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file. Additionally, a VA examination was scheduled in connection with the current claim. Therefore, VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. The Board observes that this case was previously remanded by the Board in December 2016. The purpose of this remand was to schedule the Veteran for a hearing before a Decision Review Officer. Upon remand, the Veteran was scheduled for this hearing, however he failed to report. The Board therefore finds that there was substantial compliance with the prior remand order, as is discussed more fully below, and the Board may continue with its determination. Stegall v. West, 11 Vet. App. 268 (1998). ORDER Entitlement to a rating in excess of 10 percent for an unspecified trauma and stressor-related disorder is denied. JOHN CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs