Citation Nr: 21068045 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 16-19 847 DATE: November 8, 2021 ORDER Entitlement to a rating in excess of 30 percent for unspecified trauma-related disorder is denied. FINDING OF FACT During the appeal period, the Veteran's unspecified trauma-related disorder disability picture is best characterized as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; occupational and social impairment with reduced reliability and productivity due to the disability is not shown. CONCLUSION OF LAW A rating in excess of 30 percent for unspecified trauma-related disorder is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Code 9499-9411. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from September 30, 1978 to January 15, 1979. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 Department of Veterans Affairs (VA) Decision Review Officer decision. In March 2019, a videoconference hearing was held before the undersigned. In March 2019 and April 2021 the case was remanded for further development. Entitlement to a rating in excess of 30 percent for unspecified trauma-related disorder is denied. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 1155; 38 C.F.R. Part 4. When the appeal is from the initial rating assigned with a grant of service connection, the severity of the disability during the entire period from the grant of service connection to the present is to be considered. "Staged" ratings may be assigned for distinct periods when different levels of impairment are shown. Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's unspecified trauma-related disorder has been assigned a 30 percent rating (for the period on appeal) under the General Rating Formula for Mental Disorders (General Rating Formula). 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, and mild memory loss (such as forgetting names, directions, recent events). 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 when symptoms such 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 cause total occupational and social impairment. Ratings for psychiatric disability are assigned according to the manifestation of particular symptoms, but the use of the term "such as" 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment from a psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms listed in the General Rating Formula for Mental Disorders. Instead, VA must consider all symptoms of a claimant's condition that affect occupational and social function. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). On December 2012 VA examination the diagnosis was anxiety disorder not otherwise specified (NOS). The Veteran reported some mental health symptoms which were considered to be consistent with a diagnosis of anxiety disorder NOS. Regarding anxiety, he stated that he experienced some significant anxiety and hypervigilance in specific situations. He identified the anxiety provoking situations as showering and using a public restroom. He indicated that such situations made him so anxious that he usually avoided them, if possible. He stated that he almost always took a bath rather than a shower due to his anxiety associated with showering. He mentioned that he tried to avoid using public restrooms as he indicated that he became overly anxious and very hypervigilant in a public restroom. He believed that his anxiety associated with showering and using public restrooms was directly associated with military sexual trauma (MST). He did not report experiencing any chronic anxiety outside of those two situations. He also reported experiencing some symptoms of depression. These symptoms would include occasional sad mood, feelings of worthlessness, and feelings of being a failure in various aspects of his life. The examiner opined that these symptoms did not appear to meet the diagnostic criteria for a depressive disorder. The examiner stated that although the depressive symptoms were noteworthy, they did not appear to have any chronic significant impact on the Veteran's psychosocial functioning, as necessary for a diagnosis of depressive disorder. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. The examiner summarized the Veteran's level of occupational and social impairment as 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. On October 2014 private mental status evaluation, the Veteran presented alert, vague, digressive, and listened marginally. His attitude towards the examination was cooperative; concentration was fair; attention span was short. Psychomotor activity was normal. Speech patterns tended to be coherent but tangential, uncertain, and circumstantial. Ability to abstract was marked by fluctuation between abstract and concrete levels. Ability to calculate was within normal limits; affect was normal. The Veteran reported his current mood was "happy" and indicated his usual mood was "pretty happy." He denied any wide mood swings and denied having emotional lability except for crying spells. He reported that he was depressed about twice a week and would "stay to [himself], sad, then angry, go somewhere and lay down." He reported having an average energy level, stating he did have draining fatigue "by Thursday due to working with no sleep." He denied having mania or hypomania. He reported only occasional agitation, stated he was not having any anxiety at the present time and continued to have anger problems with feelings of harm toward others. He denied any history of assault or plans to carry out harm towards others at the time. He denied any obsessions, compulsions, paranoid ideas, illusions or hallucinations, any feelings of thought reading or thought insertion, peculiar thoughts or impulses or strange things going on around him, and any feelings of supernatural forces or influences. He reported that he was alienated, reserved, and detached, but did have ability to form long term relationships (although, the examiner stated he was not sure how comfortable he was with intimacy or commitment). The Veteran's general fund of information, judgment and insight were average. He was well oriented to time, place, and person. His memory was broadly intact, but spotty and inexact for his history and life events, which he related to normal forgetting; he had no particular complaints of significant memory loss. He did have memory loss for some events connected with service and he stated that with therapy, he was able to recall those. On April 2015 VA examination, unspecified trauma-related disorder was diagnosed. The Veteran reported that his MST in service was persistently re-experienced via trauma-related nightmares and intrusive memories. He noted some improvement in these symptoms following medication changes. He reported that he avoided public restrooms due to increased anxiety. He noted that, on occasion, he had driven all the way home from a shopping center or sporting event to use a restroom. He was unable to identify other avoidance behaviors. He endorsed negative alterations in cognition and mood, such as persistent negative emotions (anger, depression, guilt, shame) and persistent feelings of blame. He reported a history of depressed mood, low motivation, and low energy, and noted such periods occurred about once every couple of months. He reported problems with irritable mood, and noted that his ability to control anger had improved since engaging in treatment. He stated, "[his] anger used to get [him] into some serious trouble but [he knew] when to walk away." His symptoms included depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The examiner summarized the Veteran's level of occupational and social impairment as 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. On July 2021 VA examination, the diagnosis was unspecified trauma and stress related disorder. The examiner summarized the Veteran's level of impairment as 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 lived with his daughter in an apartment. He reported he was not currently in a romantic relationship. Since the last VA examination, he and a significant other he dated for 3 years married in May 2018, but eventually they divorced last year (in 2020). The Veteran reported that he was able to maintain good relationships with family and friends, particularly his daughter, two sons and friends from work, and had positive relationships with his grandchildren as well. He indicated he had good relationships with coworkers. He denied belonging to any clubs, groups, and communities with regular social activities. He reported that he enjoyed reading and watching TV, and that on occasion he spent time with friends. He reported he was currently working full-time within a direct service personnel/direct care position at a group home for individuals with intellectual disabilities, and had been in this position for the last 12 years. His duties included helping individuals get up in the morning, and fixing breakfast, lunch and other meals. He indicated that he did general house chores, set up activities, and had cleaning duties as well. He reported that he enjoyed work and got along with coworkers and the individuals he cared for. Since his last VA examination, he had obtained an Associate degree in psychology and had one class left towards a bachelor's degree from the University of Phoenix. His current mental health symptoms included intrusive symptoms of distressing dreams. He reported that he participated in avoidance of behaviors (including being out in public, particularly going into public restrooms; however, he indicated that he did this on occasion recently and felt anxious). He reported alteration in arousal and reactivity stemming from sleep disturbance and anxiety in public restrooms. He was able to go to public places, but often had others "watch the door" or be in the restroom with him to decrease anxiety. He felt anxious only one time over the course of the last month though and in the past, and reported this frequency was previously higher. He also reported that he had difficulty sleeping at night; he slept only 4 to 6 hours a night. He reported difficulty with sleep initiation and sleep maintenance. He endorsed having regular nightmares. The content of the nightmares was determined to be based on being approached and assaulted in the past. Previously, medication helped, but he needed to discontinue taking them due to seizures. He reported that around 2:30 p.m., he became tired but was able to work through it. On weekends, he took naps. He had minimal concentration or memory difficulties. He had participated in medication management and therapy treatment in the past (estimated several years for medication management and shorter periods for therapy). He indicated that they utilized medication management and "basically [he] just [toughed] it out". He took medication as prescribed, including a "mood stabilizer." He had ad trials of various medications in the past, and indicated that Mirtazapine in particular helped, but caused seizures, so he stopped taking it with the provider's guidance. He reported he was having no difficulties with ADLs or IADLs. He denied having thoughts, plans, or intent of suicide. He also denied thoughts, plans, and/or intent of harming or killing others. He was provided Veterans Crisis Line contact number as a precaution. The VA examiner noted that the Veteran's symptoms included anxiety and chronic sleep impairment, and that the current examination was via telehealth. He was casually dressed; his appearance was neat and clean. He maintained appropriate eye contact, and his speech was fluent with no pressure of speech or flight of ideas. His thought process was linear and goal directed. He did not have audio/visual hallucinations, responses to internal stimuli, or psychotic thinking. He reported that his mood was good, and affect was euthymic. His interpersonal style was cooperative. The examiner did not observe any psychomotor agitation. Insight and judgment appeared to be adequate, and orientation was intact. The examiner remarked, "despite the Veteran's symptoms, the Veteran has evidenced positive resiliency, psychological stability, and psychosocial functioning as evidenced by their ability to maintain gainful employment post service, maintain healthy relationships with children, grandchildren, coworkers/friends, complete a college degree and indicate he is close to completing another, engage in leisure activities and manage all instrumental activities of daily living independently." The examiner noted that the Veteran was not at an elevated acute risk for suicide level. The Board finds that throughout the period on appeal, the Veteran's psychiatric disability has most closely approximated a disability picture consistent with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, as contemplated by the criteria for the 30 percent rating assigned, and occupational and social impairment with reduced reliability or productivity or deficiency in most areas (which would warrant higher ratings) was not shown. His symptoms included: depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. These symptoms, and related impairment, were not of a severity consistent with the types of symptoms and impairment that would warrant a 50 percent rating (and not shown to have resulted in reduced reliability or productivity). The evidence does not show flattened affect, circumlocutory speech, panic attacks (more than once a week), difficulty understanding commands, impairment of short and long-term memory, impaired judgment, impaired abstract thinking, disturbances of mood, difficulty establishing and maintaining social relationships, or any other symptoms of similar nature and severity. The record shows that after retiring from service, the Veteran has worked in civilian employment, while also studying to obtain academic achievements (which reflects a high level of occupational functioning, and does not suggest reduced productivity or reliability). On December 2012 VA examination, he reported working for an agency that provided job skills, opportunities, and transportation to others who are handicapped, and had been employed with that agency since January 2012; on April 2015 VA examination, he reported he was a "direct service person", and had been with the agency for three years. He described the job as "pretty good...it [had] its ups and downs but [he managed] so [he did not] get into trouble." On July 2021 VA examination, he reported he was working full-time in a direct service personnel/direct care position at a group home for individuals with intellectual disabilities (where he had been for the last 12 years). He described his duties assisting other. His own descriptions (suggest an occupational picture of stability, productivity, and reliability. Although an October 2014 private mental health evaluation record notes hiss report that he was alienated, reserved, and detached, he was noted to have ability to form long term relationships. The examiner also noted that his memory was broadly intact, although spotty and inexact for past history and life events, which he related to normal forgetfulness. Despite feeling depressed on occasion, he reported his current mood as "happy" and his usual mood as "pretty happy" (which would not be associated with production of occupational or social impairment). In essence, he had been able to cope with his symptoms sufficiently to prevent and substantial negative impact on occupational and social functioning. While perhaps there is some indication that his social functioning is less than optimal (as his marriage to a long-term girl-friend ended in divorce), he lived with a daughter and maintained good relationships with family and friends, particularly his daughter, two sons and friends from work, had positive relationships with his grandchildren and good relationships with coworkers, and enjoyed leisure activities such as reading and watching TV, so social impairment with reduced reliability and productivity is also not shown. While he has reported situations which make his anxious and result in avoidance behavior (of, e.g., public restrooms) such has not risen to a level of resulting in reduced reliability or productivity (although it may inhibit some social contact). As the July 2021 VA examiner summarized, "despite the Veteran's symptoms, the Veteran has evidenced positive resiliency, psychological stability, and psychosocial functioning as evidenced by [his] ability to maintain gainful employment post service, maintain healthy relationships with children, grandchildren, coworkers/friends, complete a college degree and indicate he is close to completing another, engage in leisure activities and manage all instrumental activities of daily living independently." And overall, VA examiners throughout the period on appeal, have summarized the Veteran's level of occupational and social impairment as mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The evidence simply does not show that at any time under consideration his unspecified trauma-related disorder resulted in occupational and social impairment with reduced reliability and productivity. Instead, it shows an effective and responsible occupational and social functioning level. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim, and that the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith 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.