Citation Nr: 21000706 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-00 874 DATE: January 6, 2021 ORDER Entitlement to a rating in excess of 50 percent for an other specified trauma and stressor related disorder is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating greater than 50 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the U.S. Army from January 1970 to September 1971. During this time, he was awarded the Vietnam Service Medal, the Army Commendation Medal, and the National Defense Service Medal. This matter is on appeal from a December 2014 rating decision. In March 2015, the Veteran testified at a Board videoconference hearing before the undersigned. In March 2018, the appeal was remanded for additional evidentiary development. In February 2020, the Board restored the Veteran’s 50 percent evaluation for an other specified trauma and stressor related disorder and remanded the increased rating issue for further evidentiary development. The record reflects that the Veteran received a letter indicating that the Veteran could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, the Veteran does not have a pending hearing request. The Veteran provided testimony in a hearing with the undersigned Veterans Law Judge in March 2015. The transcript of that hearing is in evidence and it was considered in making the within decision. Entitlement to a rating in excess of 50 percent for an other specified trauma and stressor related disorder. The Veteran contends that he is entitled to a rating in excess of 50 percent. In March 2015, the Veteran testified that he experiences intrusive memories, disturbed sleep and requires regular psychiatric treatment due to his service connected other specified trauma and stressor related disorder. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. In April 2012, the Veteran attended a VA evaluation at the Louisville VA Medical Center (VAMC). The findings of this examination do not show symptoms consistent with occupational and social impairment with deficiencies in most areas as contemplated by a higher disability rating. On the contrary, the examiner reported that the Veteran experienced mild or transient symptoms that may cause levels of occupational and social impairment only during periods of significant stress. The Veteran reported he is generally functioning sufficiently, with some meaningful interpersonal relationships. The Veteran was functioning in family, social, and recreational settings. For example, the Veteran was an elder in his church, his social life revolved around the congregation, he participated in hospital visits once per week, belonged to the building safety department, gave sermons for the church twice a week, and occasionally participated in social events. He reported that he was close to people in his congregation. For recreation he spent most of his time doing yard work at home and enjoyed gardening such as planting tomatoes. The examiner opined that the Veteran’s sole diagnosis of depressive disorder not otherwise specified (NOS) was due to both the Veteran’s traumatic experiences in combat in Vietnam and more recent family stressors such as recent deaths of two close relatives. With respect to his occupational history, the Veteran had not worked since his last compensation and pension examination. However, he attributed his unemployment to pain in his knees. In November 2014, the Veteran was evaluated by a VA examiner. The findings of this examination do not show symptoms consistent with occupational and social impairment with deficiencies in most areas as contemplated by a higher disability rating. The Veteran’s diagnosis was changed from depressive disorder NOS to other specified trauma and stressor related disorder. The examiner explains that this diagnosis change was due to the examiner’s conceptualization of the Veteran’s psychiatric symptoms since his April 2012 examination. Specifically, the examiner believed that the Veteran met the DSM-5 criteria for other specified trauma and stressor related disorder due to trauma-based symptoms related to combat, but not for PTSD due to a relative absence of avoidance and hyperarousal symptoms. The examiner observed that the Veteran also had some depressive symptoms that the examiner believed were due to a combination of this disorder and the Veteran’s adjustment disorder. The Veteran experienced increasing medical problems, physical impairment and additional stress acting as his wife’s caretaker since her own physical decline. The Veteran experienced ongoing difficulty adjusting to these life events, which were not related to his combat history. The examiner opined that the Veteran’s depressive symptoms increased primarily due to the adjustment disorder, and the Veteran’s “level of impairment that can be directly attributed to his service-connected symptoms listed in previous examinations has not changed meaningfully over the last 2 1/2 years.” Here the examiner’s reflections indicated that the Veteran’s disability manifested by symptoms associated with a 50 percent rating. The examiner felt that the Veteran’s symptoms were indicative of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. With respect to social impairment, he continued to participate in church activities and attended church every Sunday. While he was seldom visited by anyone outside his family, his daughter and son in law visited “fairly often.” With respect to occupational impairment, the examiner observed that the Veteran last worked about 10 years prior to the examination and that his work ended in large part due to his knee problems. In April 2019, the Veteran was afforded another VA examination. The findings of this examination do not show symptoms consistent with occupational and social impairment with deficiencies in most areas as contemplated by a higher disability rating. The VA examiner diagnosed other specified trauma and stressor related disorder and unspecified depressive disorder. The Veteran reported that he regularly attended church, engaged in leisure activities and engaged in social relationships with his family and friends. He and his wife regularly took an annual trip with their church group. The Veteran’s recent history in April 2019 reflected that the Veteran and his wife have been married since 1970. They had pets, relationships with three adult children and relationships with various family members. The Veteran had ongoing relationships with many other people who he was seeing twice a week through his church activities. The Veteran was an elder and very active in the Church. He engaged in leisure activities such as drawing and painting, occasionally going fishing, signed up for a swimming pool membership, and traveled with his church. He participated in housework to the extent he is able. He was last employed about 13 or 14 years ago and worked at a Ford truck plant for 32 years. Since the Veteran’s prior examination, he participated in ongoing treatment, and attended 15 sessions of therapy and 16 appointments for medication management. With regard to specific symptoms, the Veteran reported intrusive images, thoughts, memories, distressing dreams, strong emotional response when reminded of traumatic events, marked, persistent sadness about killings, and depressed mood. The VA examiner concluded that the Veteran’s mental health disorders were productive of occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. The symptomatology and impact of the Veteran’s service-connected other specified trauma and stressor related disorder more closely approximated a 50 percent rating. A VA examination took place August 2020. The Veteran self-reported that his disorder was more severe since November 2014. The examiner reviewed the e-folder, the Board Remand Letter February 2020, medical records, and the Veteran’s statements. For the established diagnosis of other specified trauma and stressor related disorder (previously rated as depression, NOS) the medical examiner reported that there was no change in the diagnosis, and the diagnosis was confirmed on examination. The findings of this examination do not show symptoms consistent with occupational and social impairment with deficiencies in most areas as contemplated by a higher disability rating. With respect to social impairment, the Veteran reported that he was close to one of his brothers and had been married to his wife since 1970. While there is “some tension” with his older son, he reported that they love each other. He got along “very well” with his daughter and youngest son. His church family was very supportive and helped him get through a lot of stressor in life. The examiner noted that his psychiatric disorder was manifested by depressed mood and chronic sleep impairment. During the examination, he was cooperative and personable. He willingly gave detail, but neither too much nor too little detail. He was oriented in all spheres. The Veteran reported that he was irritable to his wife at times and would argue and shout at each other. The Veteran did not appear to pose any threat of danger or injury to himself or others. The examiner felt that the Veteran’s symptoms were best summarized as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. Medical treatment records were associated with the Veteran’s file from the Louisville VAMC as follows: in April 2012 records date from October 2009 through April 2012; on October 20, 2014 treatment records from April 2012 through to June 2014; in December 2014 records dated October 2014; in July 2019 records dated August 2009 to July 2019; in July 2020 records dated February 2019 through July 2020. The Board has reviewed the treatment records for the appeal period. The medical reports and notes were consistent with the examination findings concluding that the level of impairment caused by the Veteran’s symptoms more closely approximated the level associated with a 50 percent rating. The Veteran’s testimony was recorded at a hearing that took place March 6, 2015 by video conference. The testimony is of record. The Veteran testified that he attended consultations with a psychiatrist and therapist approximately every three months, and he has not ever had any inpatient hospitalization or emergency room treatment for his disability. He experienced disturbed sleep due to sleep apnea, but he also experienced dreams that wake him up out of sleep approximately monthly. The Veteran offered details about the content of his dreams and described disturbing incidents he experienced while deployed in Vietnam. The Veteran testified that he avoided movies and television that might trigger his disturbing memories and finds that at least once or twice a month he thinks about or has dreams about events in Vietnam. The Veteran reported that he is retired but he has many friends and he sometimes gets together with them to go out to dinner. Finally, the Veteran testified he believed his condition has worsened because he “rekindles” everything that happened to him in Vietnam. In addition to the Veteran’s testimony at the March 2015 hearing, the Veteran has submitted written statements. On May 31, 2012 the Veteran indicated he believed that the VA examiner did not ask him sufficiently about his Vietnam experience, and says he still suffers from flashbacks, nightmares, intrusive thoughts, and says his condition is getting worse as he gets older. On August 26, 2014 the Veterans conveyed he feels as if his depression and anxiety are getting worse instead of better. On September 5, 2014 the Veteran included a handwritten statement with many details describing distressing memories he experienced about his experiences as a soldier in Vietnam. The Veteran expressed that he believes the doctors are not able to determine whether or not he is better because the doctors do not ask him sufficient questions about Vietnam. He stated that anything can trigger a flashback. The Board has taken the Veteran’s statements into consideration and has not overlooked the Veteran’s statements supporting his claim. The Veteran reports that he feels his condition is worsening with age. The November 2014 examiner observed that the Veteran suffered from an adjustment disorder made worse by the Veteran’s increasing medical problems, physical impairment and additional stress acting as his wife’s caretaker. The examiner opined that the Veteran was experiencing ongoing difficulty adjusting to these life events. The Veteran’s disorder meets the DSM-5 criteria for other specified trauma and stressor related disorder. See November 2014 report. The diagnosis includes trauma-based symptoms related to the Veteran’s combat experiences in the past. See November 2014 report. In August 2020 the examiner reviewed the Veteran’s disability history and clearly stated, after reviewing the claims file and interviewing the Veteran, there is no change in the diagnosis. The Veteran’s symptoms most nearly meet the criteria for a 50 percent rating due to the Veteran experiencing depressed mood, 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), and sleep impairment. The Veteran does not exhibit psychiatric symptoms from his disability warranting a higher evaluation of 70 percent. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In determining the actual degree of disability in this case, the medical evidence is more probative of the degree of the Veteran’s impairment because the medical professionals have considered the Veterans competent, credible reports of his symptoms and provided probative analysis based on their medical experience and training. See Jandreau v. Nicholson, 492 F.3d 1372, 1733. After deliberate review and with due consideration of the Veteran’s statements, the Board concludes that the preponderance of the evidence does not support a rating in excess of 50 percent for an other specified trauma and stressor related disorder, and the claim is therefore denied. The Board finds that the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating. In reaching its decision, the Board has considered the Veteran’s assertions that he is entitled to higher evaluations for his other specified trauma and stressor related disorder. The Board finds that the VA examination reports are of more probative value than the Veteran’s lay statements. These examination reports were prepared after interviews and psychiatric evaluations with the Veteran, reviews of the medical record and consideration of the Veteran’s lay statements. The findings were based upon a synthesis of the relevant data and the examiners’ medical expertise. The examination reports indicate that the Veteran is not entitled to higher evaluations for his other specified trauma and stressor related disorder. The weight of evidence indicates that the Veteran is entitled to a disability rating of 50 percent, but no more, for other specified trauma and stressor related disorder, but the Veteran is not otherwise entitled to any increased disability rating at any time during the period on appeal. 38 C.F.R. § 4.130, Diagnostic Code 9434. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.M. Schneider 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.