Citation Nr: 21070928 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 19-01 637 DATE: November 27, 2021 ORDER A 50 percent disability evaluation, and no more, for the entire appeal period for an other specified trauma and stressor related disorder, claimed as posttraumatic stress disorder (PTSD), is granted. FINDINGS OF FACT 1. For the entire rating period, the Veteran's other specified trauma and stressor related disorder, claimed as PTSD, has more nearly approximated occupational and social impairment with reduced reliability and productivity due to other specified trauma and stressor related disorder signs and symptoms. 2. The psychiatric symptoms due to other specified trauma and stressor related disorder, claimed as PTSD, and the severity of such, have not more nearly approximated a rating based on occupational and social impairment with deficiencies in most areas, such as work, family relations, and mood at any time. CONCLUSION OF LAW The criteria for an initial disability evaluation of 50 percent, and no more, for an other specified trauma and stressor related disorder, claimed as PTSD, have been met or more nearly approximated throughout the appeal period. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411(2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service from September 1966 to September 1969. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in February 2020. A transcript of the hearing is of record. In an April 2020 decision, the Board of Veterans' Appeals (Board) denied an initial disability evaluation in excess of 30 percent for an other specified trauma and stressor related disorder, claimed as PTSD. Thereafter, the Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 Joint Motion for Partial Remand (JMPR), the parties requested that the decision be vacated and remanded for actions consistent with the JMPR. Later that month, the Court ordered that the JMPR be granted and that the matter be remanded for action consistent with the JMPR. In June 2021, the Board remanded this matter for further development, to include a VA examination. The requested development has been completed and the matter is now ready for appellate review. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2020). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The General Formula for Rating Mental Disorders, Diagnostic Code 9411, provides that a 30 percent rating is assigned for 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 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 abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is assigned for 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); inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent evaluation 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms cited above follow the phrase "such symptoms as" which indicates 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. Accordingly, the Board has not required the presence of all or most of the enumerated symptoms for any particular rating. The list of symptoms merely provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. The Board must consider all symptoms of the veteran's condition which affect the level of occupational and social impairment. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436, 441-443 (2002). The Veteran maintains that the symptomatology associated with his service-connected other specified trauma and stressor related disorder warrants a disability evaluation higher than that which is currently assigned. In conjunction with his claim, the Veteran was afforded a VA examination in January 2016. The examiner diagnosed the Veteran as having an other specified trauma and stressor related disorder. The Veteran reported experiencing intrusive memories and ruminative ideation of military stressor experiences on a weekly basis, instigated by emotional, environmental, and interpersonal triggers/stimuli; recurrent distressing dreams up to a few times monthly, without direct recall of content; associated psychophysiological responses to intrusive thoughts and dreams (including anxiety; restless/agitated sleep and episodic "yelling" in his sleep (according to observations of spouse); startled awakening, etc.; avoidance behaviors to avert exposure to stimuli instigating thoughts, feelings, or memories of the stressor events (e.g., will not watch any shows that depict military scenes, as well as turns off TV news that address international military conflicts); avoiding being in crowded areas, even while with spouse or family, when he perceives lack of egress; becoming agitated if he felt "trapped"; persistent states of sadness and guilt about having survived his military service in Vietnam when others did not "that could have been me..."); irritability (with verbal aggression); and hypervigilance. The Veteran reported attenuations in cognitive functions (e.g., concentration, attentions, etc.) when symptoms were most pronounced. The examiner indicated that the Veteran's other specified trauma and stressor related disorder resulted in 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. The Veteran reported having been with his spouse for 25 years, with 13 years of marriage. He noted having regular visits with his children and grandchildren. The Veteran stayed at home with his spouse when not engaged in other family activities. He reported some interaction with mutual friends. The Veteran noted engaging in some social activities with his spouse, though he was stressed by crowds and intimidated in venues that were overstimulating. The Veteran and his spouse indicated that while their marriage was supportive and strong overall, it had been chronically challenged by his irritability, agitation, and labile moods, especially when his psychiatric symptoms were most pronounced. His spouse noted that they experienced marital conflicts when he was agitated and distressed. She stated that the Veteran was avoidant and moody when he was challenged by distressing thoughts. The examiner indicated that the disorder caused anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; and disturbances of motivation and mood. The Veteran was alert and oriented to time, place, and person. He also was oriented to the purpose of the evaluation. His behavior was appropriate. His eye contact was good. His attitude toward the examiner was cooperative. His mood was euthymic (neither elevated nor depressed). His affect was unrestricted and congruent with mood. His thought processes were logical and goal-directed, and the content of the conversation gave no indication of any psychosis or mania. The Veteran's speech was unremarkable with regard to rate, rhythm, or volume. His judgment and insight appeared intact and fair. The Veteran did not report or describe any instances of recently or significantly impaired judgment and denied any significant or persistent difficulties in addressing independently general activities of daily living, such as eating, maintaining personal hygiene, and addressing personal or domestic chores, though he reported a reduced motivation for such when his symptoms were pronounced. The Veteran explicitly denied any suicidal or homicidal ideation. The examiner indicated that the Veteran reported a chronicity and intensity of symptoms of intrusion, avoidance patterns, chronic negative alterations in mood and cognitions, and arousal symptoms. The intensity and duration of these symptoms had eventuated in personal distress and chronic mood dysregulation, as well as associated alterations in functional status (given patterns of avoidance, reactions to environmental and interpersonal distressing stimuli, and irritability/emotional reactivity that attenuated if not impaired personal and social interpersonal functioning). Symptoms of the Veteran's depressed mood interfaced with his primary diagnosed mental health disorder, and were expressed as though not limited to motivation and mood difficulties, irritability, sleeping difficulties, and emotional lability, which continued to impact the Veteran's relationships with family and others. At the time of a May 2016 VA examination, the Veteran was again diagnosed as having other specified trauma and stressor related disorder. The examiner indicated that this disorder resulted in 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 medication. The Veteran reported that he had been married for 13 years, but that he and his wife were together for a long time. They had no children together, but she had a son and daughter and he was close with her children. There were grandchildren as well as a great grandchild. The Veteran did have friends and socialized with them which gave him much pleasure. The Veteran stated that he never had any problem with the people he worked with. In his last job he was a laborer for a construction company. He did this for 32 years. He was never fired, but was laid off at times, but always called back. He retired at age 62 back in 2004. He never missed time from work due to any emotional issues. The Veteran reported a lack of sleep, where he had difficulty falling and staying asleep, about twice per week. He stated he sometimes had a bad dream about Vietnam about two times per month. These problems had gone on for many years. He would toss and turn and at times had 'fought' in his sleep. He reported about 4 hours of broken sleep per night. The Veteran was a bit vigilant and would recheck the doors and windows around the house. He was always looking around whenever he went outside. He could sit anywhere in a building; however, he did need to check out any noise and see where it is coming from. The Veteran stated that his mood and temperament were stable. He was not very irritable or short tempered. He avoided arguments. When he first came home from Vietnam, he was a bit volatile. However, he never had any serious relationship problems with others. He had never been told that he was difficult. The Veteran never had problems with people he worked with and was never fired. He did construction work for 32 years and retired when he turned age 62. He never missed time from work due to any emotional issues. The Veteran reported he would 'hang around' in a crowd for a while and then would move on. He enjoyed family gatherings. He denied any periods of depression and was not particularly down. He did not withdraw or isolate and always maintained his grooming and eating. The Veteran denied any suicidal ideation and only felt sad when he thought of some things from the past. He denied any negative self-perceptions and never expressed a sense of foreshortened future. He also denied any great amount of anxiety or worry. He had pleasure in his life socializing with friends and had been able to show love and caring to family and others. The Veteran had memories of Vietnam that would come and go. He reported some flashback episodes of events from the war. He denied any shame or guilt and did not watch war stories on TV. He also denied any problem with memory or concentration. Mental status examination revealed he was casually dressed and his speech was clear and coherent. He was in good reality contact and oriented times three. No delusions or hallucinations or suicidal or homicidal ideations were present. Reasoning, judgement, and memory were intact. Affect was calm and pleasant. The examiner indicated that the Veteran had chronic sleep impairment. At the time of an October 2016 outpatient visit, the Veteran reported his nightmares were a bit worse and that they occurred about four nights per week with trouble falling back to sleep. Mental status examination revealed he was well groomed. There was no psychomotor agitation/retardation. Speech had a normal rate, rhythm, and tone. Affect was euthymic and well-related and mood was described as "ok". There were no hallucinations, homicidal or suicidal ideations, or paranoid ideations. Insight and judgement were fair-good. Thought process was linear and goal-directed. At the time of a January 2017 visit, the Veteran reported no complaints, no changes, and a stable mood. The memory issues had not worsened. Mental status examination revealed he was well groomed. There was no psychomotor agitation/retardation. Speech had a normal rate, rhythm, and tone. Affect was euthymic and well-related and mood was described as "ok". There were no hallucinations, homicidal or suicidal ideations, or paranoid ideations. Insight and judgment were fair-good. Thought process was linear and goal-directed. At the time of a May 2018 outpatient visit, the Veteran reported that his sleep and mood were "OK" and his memory was "good". He spent his time working on the house, walking, or reading the paper. Mental status examination revealed he was well groomed. There was no psychomotor agitation/retardation. Speech had a normal rate, rhythm, and tone. Affect was euthymic and well-related and mood was described as "ok". There were no hallucinations, homicidal or suicidal ideations, or paranoid ideations. Insight and judgment were fair-good. Thought process was linear and goal-directed. At the time of a November 2018 outpatient visit, the Veteran reported that everything was fine and that he had no complaints and neither did his spouse. His mood was stable. Mental status examination revealed the Veteran was well groomed. There was no psychomotor retardation/agitation and speech had normal rate/rhythm/tone. Affect was euthymic, well-related. Mood was "ok". Thought process was linear and goal-directed. There were no hallucinations, homicidal or suicidal ideations, or paranoid ideations. Insight/Judgment were fair-good. At the time of an April 2019 VA examination, the Veteran was again diagnosed as having an other specified trauma and stressor related disorder. The examiner indicated that this disorder caused 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 medication. The Veteran reported that he and his wife lived together for 10 to 15 years before they married and were still together. He was in good contact with the children and grandchildren. He also had contact with friends and socialized with them and family. He mostly had phone contact with these persons. The Veteran reported that sometimes he would get upset about different things. He stated that off and on he had some problems staying asleep at night. This could happen 2-3 times per week. He did wake up more than once per night, but could get back to sleep in only 10-15 minutes. He had an occasional bad dream of Vietnam about once per month. His wife stated he was restless in bed and he would fight in his sleep. These problems had gone on for many years. Often the Veteran would get up in the morning, eat, and then lay on the sofa and go back to sleep. At night, he would get about 4-5 hrs. of broken sleep. He was a bit vigilant and would recheck his surroundings. He had to be able to see what was going on. He moved out of the way of others in the street. He could sit anywhere in a building but needed to see what was going on around him. He did react to some noises by checking out what they were and where they were coming from. The Veteran described his temperament as off and on. He had been short tempered sometimes, but did not argue much. He had never behaved violently. He denied any relationship problems and had never been told that he was hard to get along with. The Veteran denied any problem getting along with people he worked with. He stated he had had a lot of jobs but was doing construction work at his last job for 23 years. Emotional issues never interfered with his doing the job. He retired in 2000. The Veteran stated he was seldom in crowds and mostly kept to himself and would speak to people if he had to. He denied feeling depressed and did not isolate or withdraw. He always maintained his grooming and denied any suicidal thoughts. He described himself as 'happy-go-lucky'. He did not express any negative self-perceptions. He had no sense of foreshortened future. The Veteran stated that he did not feel nervous much and was able to express caring to loved ones. For pleasure, the Veteran used to like riding a bike. He did not do that now. For pleasure, he enjoyed visiting with friends. The Veteran only thought about Vietnam occasionally. He had not had any flashback episodes. He had never felt any guilt or shame about his military service. The Veteran preferred to avoid watching war stories on TV. He denied any serious concentration or memory problems. The examiner indicated that the Veteran's disorder caused chronic sleep impairment, mild memory loss, and disturbance of mood and motivation. Mental status examination revealed the Veteran was casually dressed and his speech was clear and coherent. He was in contact with reality and oriented x 3. No delusions or hallucinations were present and there was no suicidal or homicidal ideation. Reasoning and judgment were intact. Memory was fair and affect 'good'. The examiner carefully attempted to evaluate any presence of dementia and found no significant deficits. At his February 2020 hearing, the Veteran testified as to experiencing panic attacks two to three times per week. He noted struggling to understand complex commands or directions. He also reported forgetting to do things that his wife had asked him to do or finishing up a task such as taking out the trash. The Veteran noted having little motivation. He reported waking up, cleaning and washing up, and heading to the sofa about two times per week. He stated that he would make himself do things. He reported having mood swings around the house on occasion. He noted meeting new friends but kept a distance until he really got to know them. The Veteran stated that he had not had any suicidal thoughts. He noted that his PTSD had not affected his employment prior to his retirement. At the time of a December 2020 VA examination, the Veteran was again diagnosed with other specified trauma and stress related disorder. The examiner found that the Veteran's trauma disorder resulted in 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. The examiner noted that the Veteran had been married to his wife for approximately 30 years. He was unable to remember the year he got married. His wife brought 2 children (1 son and 1daughter) into the marriage. He said that by now, he had grandchildren and great grandchildren. He reported that he and his wife "get along OK." He stated that he did not have friends: "I don't go out much, just stick with my family." He noted that his children and grandchildren live nearby, and prior to the Covid19 pandemic, they visited frequently. The examiner indicated that the Veteran had persistent and exaggerated negative beliefs or expectations about oneself, others, or the world and that he was in a persistent negative emotional state. He also had irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; hyper-vigilance; exaggerated startle response; problems with concentration; and sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep). The examiner further noted that the symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The Veteran was found to have depressed mood; anxiety; suspiciousness; chronic sleep impairment; and mild memory loss, such as forgetting names, directions, or recent events. Mental status examination revealed that the Veteran was neatly groomed and appropriately dressed. He was open, pleasant, and cooperative throughout the evaluation. He was alert and oriented times four. His speech was of normal rate, rhythm, and volume. His thinking was goal directed and logical. His mood was anxious, and he exhibited a full range of affect. There was no evidence of psychosis or delusional ideation. He denied suicidal/homicidal ideations. The Veteran was afforded an additional VA examination in September 2021. At that time, the Veteran was noted to be accompanied by his spouse. The Veteran indicated that things at home were "good" and reported that they got along okay. He noted that they did not sleep in the same room. He stated that if they had a disagreement "I don't get loud". He denied any physical aggression. He indicated that they spent a lot of time together and that he enjoyed this time. He reported that they did go out together. He stated that his relationship with his wife was unchanged from what it was at the time of his last evaluation in 2020. The Veteran indicated that he had friends. He stated that they saw and talked to each other. He reported that he talked to them on the phone weekly. He noted seeing friends once a week or so. The Veteran attended church and stated that he talked a bit with people after services. He did not socialize with these people outside of church. The Veteran did not go anywhere because of COVID and spent his time at home watching television. He denied any difficulty maintaining personal hygiene. His appetite was "fair". He reported that he drove himself places but took transportation if he needed to go downtown. The examiner noted that the Veteran had persistent and exaggerated negative beliefs or expectations about oneself, others, or the world and that he was in a persistent negative emotional state. He also had irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; hyper-vigilance; and exaggerated startle response. The examiner further noted that the symptoms caused anxiety; suspiciousness; chronic sleep impairment; and difficulty in establishing and maintaining effective work and social relationships. Mental status examination revealed the Veteran appeared clean, adequately groomed, and casually dressed. He was alert and oriented to time, place, person, and the purpose of the evaluation. His behavior was appropriate to the evaluation setting and he maintained eye contact with the examiner within normal limits. His attitude toward the examiner was cooperative. His range of affect was full and congruent to the conversation and his mood appeared euthymic. His speech was of normal rate, rhythm and volume. His thought process was logical and goal directed and his thought content showed no evidence of hallucinations, delusions, or mania. Judgment appeared grossly intact. He did not describe or disclose any instances of significantly impaired judgment. With regard to activities of daily living such as obtaining and eating food, maintaining personal hygiene, and maintaining household chores, the Veteran indicated he was able to fully and independently complete these tasks. He denied any homicidal or suicidal ideation, plans or intent, either in the past or present. The Veteran reported that he continued to experience nightmares. His spouse stated that he was moody most of the time. She noted that he would fly off the handle and yell. The Veteran reported that he did not know why she said that. After a review of all the evidence, lay and medical, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 50 percent evaluation have been met throughout the appeal period. The Board finds that the criteria for a disability evaluation in excess of 50 percent have not been met or nearly approximated at any time. The Board finds the Veteran's psychiatric symptoms and the severity of his symptoms did not more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, to include as 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 worklike setting); inability to establish and maintain effective relationships during this time period, and the criteria for a 70 percent rating are not met. 38 C.F.R. §§ 4.3, 4.7. The Veteran was not shown to have suicidal plans or intentions during this time period. There were no findings or assertions of suicidal or homicidal plans or intentions at the time of the VA examinations or in the numerous VA outpatient treatment records which have been associated with the claims folder. There were also no obsessional rituals found which interfered with routine activities. Speech was not found to be intermittently illogical, obscure, or irrelevant at any time during this period, including at the time of any VA examination. While depression has been diagnosed throughout the appeal, it was not found to be near-continuous affecting the ability to function independently, appropriately and effectively. There were no panic attacks noted to be occurring on a near-continuous basis. He was found to be alert and oriented to time, place, and person at all times, and there were no findings of neglect of personal appearance or hygiene. As to relationships, the Veteran has continually remained married throughout the appeal period. The Veteran was also noted to socialize with family and friends. The Board recognizes the Court's holding in Mauerhan, 16 Vet. App. 436. With this in mind, the weight of the lay and medical evidence shows that the Veteran's overall PTSD picture was adequately contemplated by the 50 percent rating. The Veteran did suffer from sleep problems, but this is specifically listed under the criteria for a 30 percent rating, a lower rating than the current 50 percent evaluation. Disturbance of motivation and mood and difficulty in establishing and maintaining relationships are specifically contemplated in the 50 percent rating criteria. The same is true with the Veteran's depression and anxiety, which are both symptoms contemplated under the 30 percent disability rating. A 50 percent disability rating also considers "disturbances of motivation and mood" which would include the Veteran's reported depression and anxiety symptoms. For these reasons, the Board finds that a preponderance of the evidence is against a rating in excess of 50 percent for an other unspecified disorder. As the preponderance of the evidence is against a rating in excess of 50 percent for this time period, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.