Citation Nr: 21077261 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-43 376 DATE: December 29, 2021 ORDER Entitlement to an evaluation of 50 percent and no higher for other specified trauma or stressor related disorder (claimed as PTSD) prior to August 25, 2021 is granted. FINDING OF FACT The Veteran's other specified trauma and stressor related disorder has resulted in occupational or social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability rating of 50 percent and no higher for other specified trauma and stressor related disorder prior to August 25, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DCs 9499-9410, 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1965 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans' Law Judge in May 2021. Beyond the above, it is important for the Veteran to understand that he is already at 100 percent disability rating for other specified trauma or stressor related disorder since August 25, 2021, and that further increased ratings, based on a review of this record, will not result in increased compensation beyond the 100 percent rating. SMC has also already been granted after August 25, 2021. 1. Entitlement to an evaluation of 50 percent and no higher for other specified trauma or stressor related disorder (claimed as PTSD) prior to August 25, 2021 is granted. The Veteran is service connected for "other specified trauma and stressor related disorder," with a 30 percent rating for that disability prior to August 25, 2021. He seeks a higher rating. The Board finds that the claim should be granted. The Veteran's disability is rated under DC 9499-9410 for relevant period on appeal. Under the applicable criteria, a 10 percent rating is warranted when the disorder is manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during period of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130. A 30 percent rating is warranted when the 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 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). Id. A 50 percent rating is assigned for 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. Id. A 70 percent rating is warranted 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 worklike setting); inability to establish and maintain effective relationships. Id. Finally, 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; memory loss for names of close relatives, own occupation, or own name. Id. 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). The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, 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). The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed in the rating criteria are not exhaustive, but rather, serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas. That is, the regulation requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas. Vasquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. A comprehensive VA assessment from March 2017 noted that the Veteran had been experiencing increasingly vivid dreams and nightmares of events that he experienced in service. The Veteran described symptoms such as intrusive thoughts, increased irritability, and a tendency to gravitate towards war-related programing on television. He also reported that his greatest stressor was dealing with his son-in-law who was allegedly abusing his grandchild. It was noted that the Veteran lived with his wife and three dogs and had two children. The Veteran cited his family as his biggest source of support. He also indicated that he was employed full-time and had worked as an environmental compliance inspector for the last 22 years. The Veteran denied manic symptoms, hallucinations, obsessive behaviors, or panic attacks. The Veteran underwent a VA examination in June 2017. He was diagnosed with other specified trauma or stressor related disorder and subthreshold PTSD. The examiner noted that a mental condition was formally diagnosed but symptoms were not severe enough either to interfere with social and occupational functioning or to require continuous medication. The Veteran stated that he was currently married to his wife of 27 years and that he had two adult children from his first marriage as well as two stepchildren from his current wife. He noted that he had a good relationship with all his children. The Veteran reported that he finished high school and was enrolled in a leadership course at his work. He continued to be employed as an environmental compliance inspector. The examiner noted symptoms of anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, and mild memory loss. The Veteran was fully oriented, appropriately dressed, and groomed, and cooperative. The Veteran's speech, thought processes, insight, and judgment were all within normal limits. There were no perceptual disturbances reported. The Veteran reported difficulty sleeping, hypervigilance, nightmares, irritability, and intrusive thoughts. He denied any suicidal ideation but did note that he had thoughts about shooting his son-in-law at times. The Veteran stated that he would not follow through with such thoughts as he did not want to be separated from his family. The examiner noted that the Veteran's symptoms were mild in nature. The Veteran's spouse submitted a November 2017 lay statement regarding the Veteran's mental health condition. She recounted how the Veteran began distancing himself from family after watching a war movie. She noted that the Veteran's sleep impairment and associated nightmares began soon after. She stated that he would often stay up all night and that she could hear him talking though there was no one else in the room and he was not on the phone. The Veteran's spouse then noted that he had become shorter tempered over the years. She described how the Veteran would get into arguments with their grandchild over minor issues. She stated that the Veteran also extended his aggression to other drivers on the road and that when they went to particular stores, he seemed fixated on parking in the same place every time. She then recounted how she hosted a gathering for her employees over the holidays and the Veteran began ranting. After the outburst the Veteran did not speak to anyone else and retreated to the bedroom after he had eaten. She also stated that the Veteran was no longer allowed to visit her place of work as he had caused a scene by insulting one of her employees. The Veteran's spouse then noted that the Veteran felt the need to take his gun with him everywhere and that he felt paranoid if there are people within 50 feet of them. She stated that the Veteran's social decline led her to working late sometimes in order to avoid interacting with him, and she felt that his relationships with family members were suffering due to his mental health condition. In March 2018 VA treatment records, the Veteran reported nightmares, intrusive thoughts, flashbacks, and irritability. He also described symptoms of hypervigilance and stated that he felt tension when out in public. He also found that he was snapping at coworkers once or twice a week. The Veteran was appropriately dressed and groomed. His attention and memory were appropriate for the session and he was fully oriented. Speech, psychomotor activity, and judgment were within normal limits. He also denied any suicidal or homicidal ideation. May 2018 VA treatment records indicated that the Veteran was experiencing more vivid nightmares and intrusive thoughts. He also reported increased irritability and reiterated that his greatest stressor was his son-in-law. September 2018 VA medical records noted that the Veteran was participating in many activities to stay busy. He stated that he had low frustration tolerance but that he is under control. He denied any violent incidents. The Veteran was also assessed by the VA in October 2018. His chief complaints were nightmares, impaired sleep, irritability, intrusive memories, and decreased socialization. The Veteran reported avoiding other people, including extended family members. He stated that he had mild panic attacks but denied any obsessive behaviors, suicidal ideation, or homicidal ideation. In July 2019 private treatment records, it was noted that the Veteran was negative for agitation, confusion, or hallucinations. He presented as euthymic with appropriate mood and affect. In considering the evidence shown in the above record of treatment and examination, the Board notes the symptoms listed as rating criteria in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, of their effects or of an equivalent occupational and social impairment which would justify a higher rating. Therefore, the Board will consider when necessary whether some symptoms may be reasonably similar to or suggested by the criteria associated with the higher ratings of the General Rating Formula. However, in looking to 38 C.F.R. § 4.126 (a), the Board also notes that it "shall consider frequency, severity, and duration of psychiatric symptoms." The Board understands that regulation, in its use of the phrase "shall consider," to require consideration of such factors. See also Vasquez-Claudio v. Shinseki, 713 F.3d 112 116-17 ("Reading §§ 4.126 and 4.130 together, it is evident that the "frequency, severity, and duration" of a veteran's symptoms must play an important role in determining his disability level") (Fed. Cir. 2013). In following this regulatory directive, the Board therefore has considered the context in which to weigh evidence of the various symptoms found in the record as it understands the application of § 4.126(a), that is to say, by consideration of the temporal significance and intensity of those symptoms. The above records of treatment and examination show the Veteran's symptoms of PTSD more closely approximate occupational and social impairment showing reduced reliability and productivity and is entitled to a higher disability rating of 50 percent during this period. Among the several criteria indicating the Veteran's degree of impairment, by way of example, are disturbances of motivation and mood and/or difficulty in establishing and maintaining effective work and social relationships. The Veteran complained most significantly of increased irritability, hypervigilance, and sleep disturbance in the medical treatment records. These symptoms resulted in moderate limitations in the Veteran's ability to work, to interact socially and to adapt, with proximity to others being of greatest concern. In the November 2017 lay statement, the Veteran's spouse described several incidents where the Veteran was in verbal conflict with others and in March 2018 VA treatment records he reported that he snapped at his coworkers once or twice a week. Additionally, according to the June 2017 VA examination and October 2018 VA assessment, the Veteran also exhibited symptoms of panic attacks and impairment of short-term memory. These symptoms are of the same severity, type, frequency, and duration as those associated with a 50 percent rating. The Board finds, however, that a higher evaluation at 70 percent is not warranted during this period, as the record shows no findings suggesting impaired communication capacity or thought processes. Furthermore, at no point has the Veteran exhibited symptoms such as near continuous panic, obsessional rituals or neglect of personal hygiene, impaired impulse control, or suicidal/homicidal ideation on a regular or frequent basis. Although the record shows that the Veteran mentioned homicidal feelings towards his son-in-law, he was adamant that he would not act upon these feelings. He also stated in September 2017 VA records that while his frustration tolerance was low, he was able to control himself. The Veteran denied any periods of violence. Therefore, the Veteran's documented irritability is more consistent with "disturbances of motivation and mood" contributing to "reduced reliability and productivity," and less consistent with "impaired impulse control (such as unprovoked irritability with periods of violence)" contributing to "deficiencies in most areas." Importantly, the Veteran's symptoms did not affect his ability to function independently, and his speech was never illogical, obscure, or irrelevant. Rather, his speech was normal rate, rhythm, and amount. He was consistently alert and oriented to place and person. There was no consistent impairment of thought processes or communication. (Continued on the next page) For the reasons stated and based on the objective medical evidence, the Board finds the preponderance of the evidence supports an initial disability evaluation of 50 percent, but no higher, prior to August 25, 2021. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.