Citation Nr: 21005001 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-14 181A DATE: January 28, 2021 ORDER Entitlement to an initial 30 percent rating, but no higher, for service-connected other specified trauma and stressor related disorder (claimed as PTSD) is granted. FINDING OF FACT During the entire period of the claim, the impairment from the Veteran’s other specified trauma and stressor related disorder has more nearly approximated occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks than reduced reliability and productivity. CONCLUSION OF LAW The criteria for a 30 percent rating for the service-connected other specified trauma and stressor related disorder have been met throughout the appeal period. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9410.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from October 1968 to October 1971. This matter comes before the Board of Veterans Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before undersigned in September 2020. A transcript of that hearing is of record. 1. Entitlement to an initial rating in excess of 10 percent for service-connected other specified trauma and stressor related disorder. The Veteran is currently in receipt of a 10 percent rating. In his notice of disagreement and VA Form 9, he indicated the award of a 30 percent rating would satisfy his claim for increase rating. Following consideration of the totality of the record, the Board finds the evidence to be in equipoise such as to afford the Veteran the benefit of the doubt and award a 30 percent rating, but no higher, for the entire period on appeal. Further, as this claim stems from the initial grant of service connection, the relevant period on appeal is from date of service connection, here December 16, 2015, forward. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate DCs identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. 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. See 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. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). When the appeal arises from an initial assigned rating consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119(1999). Consistent with the facts found, the rating may be higher or lower for periods of the time under review on appeal, that is, the rating may be “staged.” Id. The Board notes that the revised Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), which, among other things, eliminates the use of Global Assessment of Functioning (GAF) scores, applies to appeals certified to the Board after August 4, 2014. See 79 Fed. Reg. 45, 093 (Aug, 4, 2014). Here, the matter was certified for appeal in May 2020. The DSM-IV, which still considers the GAF, will thereby not be considered. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Under DC 9410, a 10 percent rating is warranted when mild or transient symptoms decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned with 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, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation requires 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 prescribed when there is evidence of 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 prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Turning to the record, in February 2016, the Veteran underwent VA examination. The diagnosis was other specified trauma and stressor related disorder and mild alcohol use disorder in remission. At the time of examination, the Veteran stated that he last received psychiatric care in the 1980s. He reported being married to his wife for 38 years, which described as being “above average.” He said he one friend who he could confide in but not regularly socializing with anyone. He indicated he was employed and had been working for the same construction company for three years. The examiner opined that there were no symptoms or impairments listed on examination due to the Veteran’s alcohol disorder as it was in remission. As to the stress disorder, it was noted to cause occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medications; equivalent to a 10 percent rating. Under the section of examination titled symptoms, the examiner specified the Veteran suffered from depressed mood, anxiety, suspiciousness, and chronic sleep impairment. Under the PTSD criteria section of the examination, the examiner noted the Veteran suffered from additional symptoms of persistent avoidance of stimuli associated with the traumatic event; feelings of detachment or estrangement from others; irritable behavior and angry outbursts; problems with concentration; and sleep disturbance. In August 2016, the Veteran’s spouse maintained that the VA psychiatric examination was rushed and did not reflect the true severity of the Veteran’s condition. Beyond the symptoms noting on examination, she said she witnessed “changing moods that [were] impossible to predict.” She added that the Veteran experienced unprovoked anger that negatively impacted their marital relationship as well as the Veteran’s relationship with their daughters. She also reported that the Veteran has problems with authority figures in work settings, difficulty with avoidance, and essentially an inability to speak about his military service. In September 2020, the Veteran’s spouse stated that the Veteran has throughout the appeal suffered from suspicious/paranoia to the point of sleeping with a gun under the mattress and always carrying a gun. He also experienced an easy startle response and chronic sleep impairment. She noted that although the Veteran can engage in social situations it has to be on his terms or he will not go. Finally, she noted the Veteran has had difficulty keeping jobs for long lengths of time because of his angry outbursts/irritability. On Board hearing, the Veteran confirmed the initial reports of his spouse and added he has consistently suffered from impaired memory and panic attacks once a month. He also reported maintaining a strong relationship with his wife, daughters, and grandchildren. He reported working for a construction company for a year and a half but temporarily resigning due to fear of contracting COVID-19. Following repeat inquiry from the undersigned, the Veteran emphasized that but for COVID-19 precautions he would still be working. Similarly, he reported that COVID-19 restrictions generally precluded his ability to socialize outside of the home with his wife. However, prior to COVID-19, he reported enjoying going to dinner and dancing with his wife at “fraternal or Veteran’s organizations.” After review of the competent and probative evidence, the Board finds that an initial rating of 30 percent, but no higher, is warranted. Acknowledgment is given to the occupational and social impairment findings of the 2016 VA examiner which were equivalent to a 10 percent rating. However, the Veteran and his spouse have submitted competent and credible evidence describing his symptoms during this time. These statements reflect anger, irritability, suspiciousness, chronic sleep impairment, and unpredictably shifting moods. Combining the symptoms noted on examination along with the credible and competent lay statements of record, the Board finds that the Veteran’s overall disability picture more closely mirrors 30 percent rating criteria than 10 percent. As a result, an initial rating of 30 percent, but no higher, for the Veteran’s stress disorder is warranted. In addition, as noted above, the Veteran on notice of disagreement and VA Form 9 asserted that his symptomatology only warranted a 30 percent rating. His notice of disagreement specified that he was seeking a 30 percent rating. Given these statements, the Board considers the above award to constitute a full grant of the benefit sought on appeal. However, notwithstanding the express limits that the Veteran placed on his appeal, the Board notes that the record simply does not support a rating in excess of 30 percent. In that regard, the record is negative for evidence of symptomatology which would warrant the next highest rating of 50 percent. There is indication of 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; and impaired abstract thinking. As to difficulty in establishing and maintaining effective work and social relationships, the Board acknowledges the lay assertions of record suggesting some impairments in this arena, but finds the totality of the record does not support symptomatology severe enough to warrant a 50 percent rating or higher. To that end, per the Veteran’s own report, he enjoys strong relationships with his spouse, children, and grandchildren. He also specified maintaining an essentially strong relationship with his most recent employer for decades. Finally, treatment and examination records do not contradict the above, as such, the collective evidence weighs against a higher rating. That said, the Board finds the Veteran’s symptomatology consistent with a rating of 30 percent, which contemplates the satisfactory functioning and routine behavior, self-care and conversation displayed by the Veteran, while at the same time acknowledging significant emotional challenges and some functional loss. His symptomatology simply does not reflect the multifaceted, pervasive dysfunction involving cognition, memory, judgment, abstract thinking, work productivity and verbal interaction suggested by a rating of 50 percent, let alone a 70 or 100 percent rating. Therefore, the Board finds that a rating of 30 percent, but no higher, for stress disorder warranted for the entirety of the appeal period. 38 C.F.R. § 4.130, 9410. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, Counsel 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.