Citation Nr: 21006689 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 19-14 403 DATE: February 4, 2021 ORDER Entitlement to an increased rating higher than 50 percent for unspecified trauma and stressor related disorder and dyssomnia is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran’s unspecified trauma and stressor related disorder and dyssomnia did not more closely approximate occupational and social impairment with deficiencies in most areas or total occupational and social impairment. CONCLUSION OF LAW The criteria for an increased disability rating higher than 50 percent for unspecified trauma and stressor related disorder and dyssomnia 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 9435. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2005 to November 2009. The Veteran appeals an October 2016 rating decision by the Agency of Original Jurisdiction (AOJ). In an August 2019 decision, the Board denied entitlement to an increased rating greater than 60 percent for an unspecified trauma and stressor related disorder and dyssomnia. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the parties agreed to a Joint Motion for Remand (JMR) moving the Court for an Order vacating and remanding the Board decision. By an Order dated July 2020, the Court granted the parties’ JMR and remanded the matter to the Board for actions consistent with the JMR. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. §1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38C.F.R. §4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21Vet. App.505, 509-10 (2007). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. §4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11Vet. App.181, 182 (1998); 38C.F.R. §3.102. The Veteran’s service-connected psychiatric condition is rated under 38 C.F.R. §4.130, Diagnostic Code 9435. The rating criteria provide that a 30 percent evaluation is warranted 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. §4.130, Diagnostic Code 9435. A 50 percent rating is warranted 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 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38C.F.R. §4.126. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). Considering all relevant evidence, the Board finds that a disability rating of 50 percent is appropriate. The Veteran has exhibited occupational and social impairment with reduced reliability and productivity. The Veteran contends he has near continuous panic or depression, impaired impulse control, spatial disorientation, neglect of personal hygiene, difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships. See May 2019 VA Form 9. However, the Veteran provides no examples or any elaboration and seems to simply list the criteria provided in the rating schedule. Further, other than the symptom of difficulty adapting to stressful circumstances, they are inconsistent with the medical evidence of record. Thus, the Board does not find these statements to be credible and affords them no probative value. The provided spousal statement only references incidents prior to 2014 and does not provide adequate information on the current severity of the Veteran’s condition during the pendency of the instant appeal. See May 2019 Spousal Statement. Therefore, although the Board acknowledges the Veteran’s spouse’s contribution, the evidence offered is not within the appeal period, thus, the Board affords her lay statements no probative value. The October 2018 VA examiner found that the Veteran’s unspecified trauma and stressor related disorder and dyssomnia had 6 symptoms associated with reduced reliability and productivity and a 50 percent rating, namely depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impairment of short and long-term memory, and disturbances of motivation and mood, all symptomatology that more closely approximates that of a 70 percent disability rating. The VA examiner found that the Veteran’s unspecified trauma and stressor related disorder and dyssomnia had one symptom associated with reduced reliability and productivity in “most areas” such as work, school, family relations, judgment, thinking or mood, namely difficulty adapting to stress circumstances (including work or work like setting) and a 70 percent rating, namely difficulty adapting to stress circumstances (including work or work like setting. The VA examiner noted that the Veteran still works, but has difficulty concentrating and completing daily tasks, has intrusive thoughts, nightmares, and mild memory loss. The Veteran denied any updates since the June 2016 VA examination regarding his family of origin. He remains married to his wife of 11 years and they have three children. He reports that his relationships with his wife and younger children are good, but his relationship with his oldest daughter is distant because he is unable to see her as much. He stated that he coaches his middle child’s football team, goes out to eat, and enjoys movies in his leisure time. Although the evidence shows the Veteran has one symptom associated with a 70 percent rating, namely, difficulty adapting to stressful circumstances, (including work or work like setting), a symptom associated with a 70 percent rating, there is no credible, probative evidence that the Veteran has exhibited any of the other symptoms associated with a 70 percent rating, namely intermittently illogical, obscure or irrelevant speech, impaired impulse control (such as unprovoked irritability with periods of violence); obsessional rituals interfering with routine activities, suicidal ideation; impaired impulse control (e.g. unprovoked irritability with periods of violence), neglect of appearance and hygiene, spatial disorientation, near-continuous panic/depression affecting independent, appropriate or effective function, or an inability to establish and maintain effective relationships. Thus, the frequency, duration and severity of the Veteran’s unspecified trauma and stressor related disorder and dyssomnia are not most nearly approximated by a 70 percent rating. Further, the Veteran’s overall disability picture does not more nearly approximate reduced reliability and productivity in “most areas” such as work, school, family relations, judgment, thinking of mood. As noted above, the Veteran does not have reduced reliability and productivity in most areas, but rather, has one symptom associated with a 70 percent rating, but the frequency, duration, and severity of his other symptoms are consistent with a 50 percent rating. Further, there is no credible, probative evidence during the period on appeal of gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, or own occupation, or own name, thus a 100 percent, “total” rating is not warranted. In sum, the Board finds the evidence does not show the Veteran’s unspecified trauma and stressor related disorder and dyssomnia more closely approximates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, or that it has been productive of total occupational and social impairment, at any time during the period of the claim. Accordingly, a rating higher than 50 percent for the Veteran’s unspecified trauma and stressor related disorder and dyssomnia is not warranted. Overall, the Veteran has exhibited normal orientation, appearance, thought content and process, while showing adequate insight and judgment. Further, the October examiner noted that the Veteran has a good relationship with his wife and younger children. He attributed his “distant” relationship with his older daughter to the fact that he does not see her as much as his younger children, and not to his unspecified trauma and stressor related disorder and dyssomnia. The Veteran coaches a sports team that one of his children is involved with. The Veteran has not exhibited hallucinations, paranoia, or delusions on examination. The October 2018 examiner specifically noted that the Veteran does not exhibit gross thought or concentration lapses or have persistent delusions or hallucinations. Likewise, the Veteran has not endorsed suicidal or homicidal ideation. While the Veteran exhibits the symptom of having difficulty adapting to stress circumstances (including work or work like setting), which is contemplated in occupational and social impairment with deficiencies in most areas and a 70 percent rating, the symptomatology is not of sufficient severity, frequency, and duration to more closely approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, or that it has been productive of total occupational and social impairment, at any time during the period of the appeal. Accordingly, entitlement to an increased rating higher than 50 percent for unspecified trauma and stressor related disorder and dyssomnia is denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Susan Leary, Associate 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.