Citation Nr: 20035166 Decision Date: 05/20/20 Archive Date: 05/20/20 DOCKET NO. 20-00 045A DATE: May 20, 2020 ORDER Entitlement to an initial rating higher of 30 percent, but no higher, for acquired psychiatric disorder is granted. FINDING OF FACT The Veteran’s acquired psychiatric disorder is manifested by 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 symptoms of chronic sleep impairment, mild memory loss, suspiciousness, nightmares, intrusive thoughts, hypervigilance, exaggerated startle response, avoidance of public places, and avoidance of memories, thoughts, feelings, and external reminders associated with his trauma. CONCLUSION OF LAW The criteria for an initial rating higher of 30 percent, but no higher, for acquired psychiatric disorder are met. 38 U.S.C § 1155; 38 C.F.R. §§ 3.102, 3.321, 4.1, 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 December 1990 to May 1991, and from December 2007 to December 2008, including in Saudi Arabia and in Operation Iraqi Freedom. This appeal comes from a November 2018 rating decision that granted service connection for insomnia (claimed as sleep disturbances) and assigned an initial noncompensable disability rating. The Veteran filed a Notice of Disagreement (NOD) in November 2018. In November 2018, the Veteran submitted a claim for entitlement to service connection for post-traumatic stress disorder (PTSD). In a December 2019 Statement of the Case (SOC), VA considered the claim for PTSD in conjunction with the insomnia disability and recharacterized the disability as “an acquired psychiatric disorder to include your other specified trauma/stressor related disorder and insomnia.” Hereinafter the decision will refer to the disability as “acquired psychiatric disorder” for the sake of brevity. While the claim was on appeal, the initial rating for the acquired psychiatric disorder was increased to 10 percent by way of a December 2019 rating decision. Notably, the Veteran’s NOD reflects that he was seeking a 10 percent rating, which was satisfied by the December 2019 rating decision. However, the Veteran continued to pursue the appeal and in January 2020 he filed a substantive appeal contending that he is entitled to a 30 percent disability rating. Because the maximum rating was not assigned throughout the appeal period, the issue remained on appeal. See A.B. v. Brown, 6 Vet. App. 35 (1993). Entitlement to an initial rating higher than 10 percent for acquired psychiatric disorder is denied. The Veteran is seeking an increased rating for acquired psychiatric disorder. A disability rating is determined by the application of VA’s Schedule 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. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In this case, the Veteran’s acquired psychiatric disorder is rated as 10 percent disabling under DC 9410. Under DC 9411, a 10 percent disability rating is assigned for 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 disability rating is assigned where a veteran’s condition is manifested by occupation 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 disability rating is warranted when the Veteran experiences 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 “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating Id. Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. Therefore, VA must consider all symptoms of a veteran’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-5. Id.  In a December 2019 email from the December 2018 VA examiner, the VA psychologist clarified that insomnia is a symptom of the Veteran’s Other Specified Trauma/Stressor Related Disorder, rather than a separate standalone condition. The Veteran underwent two VA examinations in October 2018 and December 2018. Both examinations concluded that the Veteran’s condition does not cause symptoms severe enough either to interfere with occupational and social functioning or to require continuous medication. During both exams, the Veteran was found to have chronic sleep impairment. During the December 2018 VA examination, the Veteran described having nightmares of SCUD missiles that occur once a month or more. He further reported being hypervigilant, having exaggerated startle response when there are any noises behind him or if someone walks in front of him. He described intrusive thoughts on a monthly basis and the examiner found persistent symptoms of avoidance of memories, thoughts, feelings, and external reminders associated with his trauma. The Veteran’s contends that VA examinations downplayed his symptoms. See January 2020 Substantive Appeal. The Board finds support for this contention, as it is clear that he was prescribed trazodone for insomnia (which was even mentioned by the October 2018 examiner in the same report that denied the Veteran required medication). VA treatment records and lay evidence show that the Veteran has been prescribed trazodone for the insomnia component of the disability throughout the appeal period. Additionally, the December 2018 examiner checked the box for no impairment, but later stated: “The symptom picture presented comes together to cause mild impairment in his social and occupational functioning.” The Veteran has reported memory problems that were not addressed in the VA examination reports. See September 2018, January 2020 submissions. In his Substantive Appeal he elaborated that he has mild memory loss and forgets that he has left the water running or the stove on. He reported these to the examiner but they were not addressed in the report. The Veteran also reported that the frequency, severity, and duration of his exaggerated startle symptoms were downplayed. Specifically, the Veteran contends that he gets startled one to two times a week and jumps or jerks physically in situations that do not startle normal people. “When this happens I am forced to sit down, or take a few minutes to calm down and gather myself. My heart races and I feel embarrassed, especially when it happens in public places. For this reason, I avoid public places when I do not absolutely have to go out.” The symptoms of chronic sleep impairment, mild memory loss, and suspiciousness are indicative of a 30 percent disability level. While the December 2018 examiner found only mild impairment, which is associated with a 10 percent rating, the Board agrees with the Veteran that his symptoms were downplayed in the VA examination reports. The fact that the veteran limits himself socially by not going to public places unless necessary and has to stop tasks by physically sitting down or gathering himself demonstrates occasional decrease in efficiency and intermittent periods of inability to perform occupational tasks. The 30 percent disability rating is appropriate for someone like the Veteran who generally functions satisfactorily with routine behavior, self-care, and normal conversation. Resolving any doubt in favor of the Veteran, the Board grants an initial disability rating of 30 percent. A higher rating of 50 percent is not warranted because his symptoms do not reflect occupational and social impairment with reduced reliability and productivity. In this regard, the Veteran reported that when he is committed to be somewhere or do something, he shows up 99 percent of the time. During the December 2018 VA examination, the Veteran denied any limitation or restriction with employment. He described having good relationships with his wife, children, and grandchild. There is no evidence of symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships that would suggest a 50 percent rating is warranted. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Solomon The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.