Citation Nr: 21007854 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-39 698 DATE: February 10, 2021 ORDER A 50 percent evaluation, but no higher, for a specified trauma and stressor related disorder (psychiatric disorder) for the period prior to January 25, 2019, is granted. From January 25, 2019, to August 11, 2020, entitlement to a disability rating greater than 50 percent for service-connected other specified trauma and stressor related disorder (psychiatric disorder) is denied. From August 11, 2020, entitlement to a disability rating in excess of 70 percent for service-connected a specified trauma and stressor related disorder (psychiatric disorder) is denied. REMANDED Entitlement to service connection for degenerative disc disease of the cervical spine with cervical strain (cervical spine disability) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to August 11, 2020, the Veteran’s psychiatric disorder was manifested by occupational and social impairment with reduced reliability and productivity, but the severity, frequency, and duration of her symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. From August 11, 2020, the Veteran’s psychiatric disorder was manifested by occupational and social impairment with deficiencies in most areas, but the severity, frequency, and duration of her symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to January 25, 2019, the criteria for a disability rating of 50 percent, but no higher, for a psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating in excess of 50 percent from January 25, 2019, to August 11, 2020, for a psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130 Diagnostic Code 9411. 3. The criteria for a disability rating in excess of 70 percent since August 11, 2020, for a psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130 Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 2002 to January 2006, including service in Iraq and Kuwait. For her meritorious service, the Veteran was awarded (among other decorations) the Army Achievement Medal. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a March 2014 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in January 2020. A transcript of the hearing is in the Veteran's file. The Board previously remanded the appeal in April 2020, and the matter has been returned for appellate consideration. For the issues decided herein, the Board’s remand directives (to include soliciting a formal claim for a TDIU, obtaining a new VA examination, and obtaining an opinion from the Director, Compensation Service) have been completed such that there is substantial compliance with the Board’s remand instructions. The September 2020 rating decision increased the disability rating for the Veteran’s psychiatric disorder from 50 percent to 70 percent, effective August 11, 2020 (the date of the most recent VA examination). However, as this grant does not represent a total grant of benefits sought on appeal, the claims for increase remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to an increased disability rating for the Veteran's other specified trauma and stressor related disorder (psychiatric disorder) rated at 30 percent prior to January 25, 2019, at 50 percent from January 25, 2019, to August 10, 2020 and at 70 percent, thereafter. Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a Veteran’s service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If there is a question as to which evaluation should be applied to the veteran’s disability, 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. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board will analyze the evidence of record to determine the Veteran’s current levels of disability. In doing so, the Board first notes that it has reviewed all of the evidence in the Veteran’s claims file, placing an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claims. The Veteran seeks higher ratings for her service-connected psychiatric disorder. The disability is currently rated at 30 percent prior to January 25, 2019, at 50 percent from January 25, 2019, to August 11, 2020 and at 70 percent, thereafter. The Veteran’s service-connected psychiatric disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, and the General Rating Formula for Mental Disorders. Relevant to the issue on appeal, under the General Rating Formula for Mental Disorders, 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130 A 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty understanding complex commands, impairment of short and long term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating 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 that is 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 disability rating is assigned 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; and memory loss for names of close relatives, or for the veteran’s own occupation or name. Id. The symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather 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). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the United States Court of Appeals for Veterans Claims held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran’s service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. A. Prior to January 25, 2019. Turning to the relevant evidence of record for this period, the evidence does not indicate that the Veteran’s depressive disorder and its resulting symptoms caused 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). The Veteran was afforded a VA examination in January 2014 to determine the severity of her service-connected psychiatric disorder. The VA examiner assigned a level of 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) to her psychiatric disorder. The Veteran reported holding positions as a customer service representative in call centers. The Veteran endorsed quitting her job in October 2013 due to experiencing panic attacks, shortness of breath, and headaches. She also recalled a trip to South Africa, in which she hoped to volunteer with organizations, however the trip did not go as well. The Veteran stated that she lives with her mother and that she felt emotionally close to her mother at times. The Veteran reported not having any friends. The VA examiner noted that the Veteran reported experiencing symptoms of depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or worklike setting. Upon examination, the VA examiner noted that the Veteran became sad and tearful when discussing her current circumstances and demonstrated intense anger towards the VA examiner when asked about her treatment plan. A subsequent May 2017 VA examination report indicates that the Veteran’s psychiatric disorder was assigned a level of occupational and social impairment with reduced reliability and productivity. The Veteran reported being single and living with her mother. She stated that she had a couple of friends and spent her free time with her pets. The Veteran reported unemployment since 2013. The Veteran reported that she lacks motivation, loss of appetite, sleep difficulty, and concentration difficulties, but denied suicidal and homicidal ideation. The VA examiner attributed the symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Upon examination, the Veteran was appropriately groomed and casually dressed. Her manner was cooperative, and her eye contact was appropriate. Her thought processes were logical, and goal directed. There was no evidence of hallucinations or delusions during the interview. The VA examiner noted that the Veteran’s PAI clinical scales suggest a person with difficulties thinking and concentration, accompanied by prominent agitation, distress and dysphoria. Moreover, the VA examiner held that such individuals struggle with interpersonal relationships and decision making. After considering all of the evidence, the Board finds that, throughout the relevant rating period, the Veteran’s service-connected psychiatric disorder most closely approximates that described by the 50 percent evaluation. During that period the Veteran’s service-connected psychiatric disability manifested in symptoms such as depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or worklike setting. The Board finds that the evidence throughout the appeal period is demonstrable of social and occupational impairment with reduced reliability and productivity. Accordingly, a 50 percent evaluation is warranted throughout the appeal period. However, the Board further finds that the frequency, duration, and severity of the Veteran’s psychiatric symptoms did not result in occupational and social impairment, with deficiencies in most areas. The Veteran having a strong emotional attachment to her mother with a couple of friends. Furthermore, at no time during the appeal period, was the Veteran noted to present with the symptoms described by the 70 percent rating, to include suicidal ideation; obsessional rituals which interfere with routine activities; speech that is 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; and neglect of personal appearance and hygiene. The symptoms highlighted by the examinations of record and the Veteran’s testimony during this time instead show that the frequency, duration, and severity of her symptoms most closely approximated that described by the 50 percent rating now assigned. Consequently, in light of the foregoing evidence, the Board is not able to find that the Veteran’s psychiatric disorder resulted in occupational and social impairment, with deficiencies in most areas at any time prior to January 25, 2019. Accordingly, a 50 percent evaluation is granted for the Veteran’s psychiatric disorder prior to January 25, 2019. See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. B. From January 25, 2019, to August 11, 2020. Turning to the relevant evidence of record for this period, the evidence does not indicate that the Veteran’s psychiatric disorder and its resulting symptoms caused occupational and social impairment with deficiencies in most areas. The Veteran was afforded an April 2019 VA examination to determine the severity of the Veteran’s service-connected psychiatric disorder. The VA examiner assigned a level of occupational and social impairment with reduced reliability and productivity to the Veteran’s psychiatric disorder. The Veteran reported being single and living with her mother since 2013. She described the relationships with her mother and her dog as strained. The Veteran denied having any friends and stated that she moved due to issues with her previous neighbors. The Veteran was noted to be unemployed since 2013. The VA examiner attributed the symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships to her psychiatric disorder symptomology. Upon examination, the Veteran’s behavior was polite and guarded. She was oriented to person, place, time, and situation. Her mood was dysphoric, and her judgment was good. The Veteran denied suicidal and homicidal ideation. After considering all the evidence, the Board finds that, throughout the relevant rating period from January 25, 2019, to August 11, 2020, the Veteran’s service-connected psychiatric disability does not meet the criteria for a 70 percent or higher rating. As above, the Veteran’s service-connected psychiatric disorder manifested in depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. At no time during the relevant rating period from did the Veteran’s service-connected psychiatric disability more closely approximate the criteria for a 70 percent rating in terms of severity, frequency, and duration. Specifically, from January 25, 2019, to August 11, 2020, the Veteran exhibited occupational and social impairment with reduced reliability and productivity due to her service-connected psychiatric disability. Furthermore, he did not demonstrate symptoms consistent with many of those specifically listed under the 70 percent ratings in terms of severity, frequency, and duration such that the criteria for a 70 percent rating was more closely approximated. She did not exhibit suicidal ideation; obsessional rituals which interfered with routine activities; speech that was 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; and neglect of personal appearance, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The symptoms described above also do not approximate these symptoms, and instead more closely approximate those described by the 50 percent rating currently assigned. In summary, the Board finds that, for the Veteran’s service-connected psychiatric disorder, a rating in excess of 50 percent is not warranted during the period from January 25, 2019, to August 11, 2020. C. From August 11, 2020. As noted above, the RO increased the Veteran’s rating for her psychiatric disorder to 70 percent effective August 11, 2020. In order to warrant an increased, 100 percent rating, the evidence would have to show that the Veteran’s psychiatric symptoms have resulted in total occupational and social impairment. The August 2020 VA examination report assigned a level of occupational and social impairment with reduced reliability and productivity. The Veteran continued living with her mother and dog. The VA examiner documented that the Veteran experienced the symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including a work like setting. The Veteran was oriented in three spheres and demonstrated congruent mood and affect. After considering all the evidence, the Board finds that, throughout the relevant rating period, the Veteran’s service-connected psychiatric symptoms do not meet or approximate the criteria for a 100 percent rating. During that period the Veteran’s service-connected psychiatric disability manifested in symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including a work like setting. That said, the Veteran did not exhibit obsessive or ritualistic behavior that interfere with routine activities, 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, and own occupation or own name as described by the 100 percent rating. The frequency, severity, and duration of the Veteran’s symptoms as described do not approximate those described by this rating, either, but instead are commensurate with the 70 percent rating currently assigned for this period. Further, the Veteran’s psychiatric symptoms did not result in total occupational and social impairment. Though the Veteran described her relationship with her mother as strained, she continues to live with and maintain a relationship with her. Under these circumstances, the Board cannot find that the Veteran’s psychiatric disorder has resulted in total social impairment as required for a 100 percent rating. In summary, the Board finds that, for the service-connected psychiatric disorder, a rating of 100 percent is not warranted at any time during the relevant rating period. REASONS FOR REMAND Entitlement to service connection for degenerative disc disease of the cervical spine with cervical strain (cervical spine disability) is remanded. Entitlement to a TDIU is remanded. The Veteran is seeking service connection for a cervical spine disability. The Veteran contends that her current cervical spine disability is related to an in-service vehicle accident while on a convoy from Iraq to Kuwait. The Veteran stated that she was treated with motrin at the TMZ. The Board remanded the claim in April 2020 for a VA addendum opinion addressing the nature and etiology of the Veteran’s cervical spine disability. The VA examiner was specifically asked to address the Veteran's in-service complaints of neck pain resulting from a motor vehicle accident, and not to base the medical opinion on the absence of in-service condition. Unfortunately, the June 2020 VA examination failed to address the Veteran’s lay contention, and once again based the medical opinion of the absence of in-service condition. As such, the Board finds the June 2020 VA examination inadequate for rating purposes. As the June 2020 VA medical opinion did not adequately address the concerns raised in the September 2018 remand, the Board finds a remand is necessary to ensure compliance with the remand's directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the Board is remanding the Veteran’s claim for service connection for a cervical spine disability, any action on her claim for a TDIU would be premature. Instead, that issue is inextricably intertwined with the service connection issue, and it must be remanded as well. The matters are REMANDED for the following actions: Obtain an opinion as to whether the Veteran's cervical spine disability is related to her active service. Whether an examination is needed prior to rendering this opinion is left to the discretion of the examiner. Regardless of whether an examination is performed, the examiner is to state whether it is at least as likely as not that the Veteran's current cervical spine disability is related to her active service. The examiner must specifically note and discuss the Veteran's in-service complaints of neck pain resulting from a motor vehicle accident. (Continued on next page) The examiner is to provide a complete rationale for all requested opinions. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Higgins, 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.