Citation Nr: 21012614 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 18-28 447 DATE: March 4, 2021 ORDER Entitlement to an initial rating of 50 percent, but no higher, for other specified trauma/stressor related disorder is granted. FINDING OF FACT For the entire period on appeal, the severity, frequency, and duration of the Veteran’s other specified trauma/stressor related disorder symptoms have most closely approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW For the entire period on appeal, the criteria for a 50 percent initial rating, but not higher, for other specified trauma/stressor related disorder were met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9440. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from November 2004 to February 2005; July 2008 to September 2008; December 2009 to June 2010; August 2011 to December 2011; and October 2013 to April 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2017 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2019, the Board denied the Veteran’s claim for an initial rating in excess of 10 percent for other specified trauma/stressor disorder. The Veteran appealed the decision to the United States Court of Appeal for Veterans Claims (Court). In a September 2020 Order, pursuant to a September 2020 Joint Motion for Remand (JMR), the Court vacated the October 2019 Board decision that denied an initial rating in excess of 10 percent for other specified trauma/stressor related disorder and remanded the claim for action consistent with the terms of the parties’ JMR. The case has since been returned to the Board for further appellate review. Increased Rating 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. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Entitlement to an initial rating of 50 percent, but no higher, for other specified trauma/stressor related disorder is granted. The Veteran is currently in receipt of a 10 percent rating for other specified trauma/stressor disorder, pursuant to Diagnostic Code 9440, which provides that such disability is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. He contends that his disability is more severe than as reflected by the currently assigned rating, and as such, a higher initial rating is warranted. Under Diagnostic Code 9440, a 10 percent rating is warranted for 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 continuous medication. A 30 percent rating 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). Id. A 50 percent rating is warranted when there is 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 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 where there is 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 when there is 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. The Court has held that the 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” under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, 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” - i.e., “the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas.” Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, Diagnostic Code 9440. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “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.” 38 C.F.R. § 4.126(a). Turning to the evidence of record, just over a year prior to the start of the appeal period, VA treatment records from October 2014 noted that the Veteran had attempted suicide in the past. The Veteran indicated that he had overdosed on sleeping pills in 2010, but never told anyone and never sought treatment for it. Although the report noted that the Veteran had not harmed himself or attempted suicide within the past month and had denied current thought, urges, intents, and/or plans to harm himself or attempt suicide, it noted the Veteran exhibited the following risk factors: hopelessness, acute/recent/impending loss, anxiety/agitation, and substance abuse. In an April 2015 mental health note, the Veteran reported that he was employed at a small engine repair business that belonged to his family. He denied suicidal ideation and homicidal ideation, as well as auditory hallucinations, visual hallucinations, and paranoia. The nurse that treated the Veteran noted that he was groomed and dressed appropriately; alert and oriented to person, place, time, and circumstance; cooperative, pleasant, offered good eye contact; had no motor abnormalities; that his speech was of normal rate, volume, tone, prosody; that his mood was good, affect was euthymic, and range was adequate. It was further noted that the Veteran’s thought process was linear, relevant, and goal directed; that he did not exhibit ruminations or obsessional ideation; that his memory was intact; and that his insight and judgment was appropriate. A psychiatry inpatient note from when the Veteran was admitted for an inpatient substance abuse detox in April 2015 reported that the Veteran endorsed multiple symptoms of depression, including poor sleep, low energy, feelings of hopelessness, and guilt. The Veteran also endorsed frequent thoughts of self-harm, but reported that he never formulated a plan to do so. In a May 2015 individual counselling session note, the Veteran reported that he was living with his parents and working full-time at his family’s power equipment sales business. He also reported that he was serving in the National Guard as an aircraft mechanic. He stated that he enjoyed being outdoors, fishing, camping, hiking, and hanging out with his friend. He denied any current suicidal or homicidal ideations. He stated that until three weeks prior (before he had started taking Zoloft) he had experienced weekly panic attacks triggered by crowded places, such as shopping malls, movie theaters, and grocery stores. The Veteran designated alcohol as his drug of choice and explained that he usually relapsed due to depressed mood. In a June 2015 individual counselling session note, the Veteran reported that he had made a lot of recent positive changes. He stated that he had stopped taking medications that he had been prescribed for depression because he believed that he only needed them while stopping his alcohol use. He reported that his mood had improved and that he was going to community Alcoholics Anonymous (AA) meetings regularly. He also reported that he had returned to school and cut back on the amount of time he was working at his family’s business. He stated that he continued to go to drills with the National Guard. In a July 2015 individual counselling session note, the Veteran reported that he was “doing well, not drinking, going to meetings, going to school and getting ready to start work soon.” He then stated that he was having issues with anger. He explained that he was growing increasingly angered and frustrated by situations and people too easily and sought advice on how to address that. In a November 2015 statement in support of claim for PTSD, the Veteran reported that he had difficulty sleeping without sleeping aids, anxiety, depression, no self-worth, no self-confidence, and difficulty maintaining a job. The Veteran was afforded a VA initial posttraumatic stress disorder examination in December 2015. The examiner diagnosed the Veteran with other specified trauma and stressor-related disorder and alcohol use disorder in early remission. The examiner determined that the Veteran’s symptomatology was productive 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 normal routine behavior, self-care and conversation. The Veteran reported that he got along well with his parents and siblings, and that he maintained positive relationships with his family members. He further reported that he lived with his parents. The Veteran stated that he was a member of the Air Force National Guard and that he had started working a full-time delivery driver for UPS in November 2015. The Veteran reported that he had been abstinent from alcohol since his admission for detoxification in April 2015. He stated that he attended AA meetings every weekend. The examiner noted the following symptoms: depressed mood, anxiety, excessive worry, hypervigilance, avoidance of crowds, social withdrawal, feelings of detachment or estrangement from others, and sleep problems, including nightmares. The Veteran submitted a private examination that was conducted by a licensed psychologist in April 2017. The psychologist determined that the Veteran’s symptomatology was productive of occupational and social impairment with deficiencies in most areas, including work, family relations, judgment, thinking and mood since at least November 2015. He observed that the Veteran’s symptoms included: grossly inappropriate behavior (episodic severe intoxication); gross impairment in thought processes and communication (cited weekly panic attacks and agoraphobic avoidance of social activities noted in the May 2015 individual counselling session note); near-continuous marked to severe anxiety and depression that has continually affected his ability to function appropriately and effectively (cited depressed mood, lack of motivation low self-worth, lack of self-confidence, irritability, and restlessness that was noted in a Bioassessment dated July 2010); suicidal ideation, as presented as thoughts of suicide and death (cited a mental health noted dated September 2014); impaired impulse control (noted frequent alcohol relapses following treatment and cited his April 2015 inpatient substance abuse detox admission evaluation); difficulty in adapting to stressful circumstances, including work and work like settings (noted that the Veteran had been unable to maintain a sustainable income since 2015—the last year he was employed); and difficulty in establishing effective relationships, as seen in social withdrawal and lack of significant others (noted that during his interview with the Veteran, the Veteran stated that he does not like to be around people and does not socialize with anyone). In an affidavit by the Veteran dated October 2017, he reported that he has trouble getting out of bed in the morning because he becomes overwhelmed with thinking about his day. He explained that he forces himself to get out of bed on days when he had work. He reported that simple tasks, such as running errands and getting ready for the day, caused him stress and worry. He stated he only leaves his house to go to work, scheduled appointments, necessary errands, and to go to the gym (he explained that working out helped him relieve stress). He explained that thinking about household chores stresses him out to such an extent that he occasionally had to take breaks while in the midst of completing them until he feels motivated enough again to complete them. He reported experiencing panic attacks about once a week or every other week. He explained that he avoids people and places where he knows there will be a lot of people because crowds and loud noises trigger his panic attacks. He stated that he only spends time with his immediate family and best friend because he is not comfortable around new people. He explained that he has a difficult time trusting people that he does not know, so he avoids interacting with new people. He reported having a few nightmares a month over the prior year and stated that he avoids thinking about his time in service because it upsets him. The Veteran was afforded a VA mental disorders examination in June 2018. The examiner diagnosed the Veteran with an additional mental disorder, other specified depressive disorder—recurrent brief depression. The examiner determined that the Veteran’s symptomatology was productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks during periods of significant stress, or symptoms controlled by continuous medication. The examiner observed that the Veteran’s primary mental health complaint was recurrent brief depressive episodes of one to four days duration that occur two to three times a month. He noted that during these periods, the Veteran experienced the following symptoms: depressed mood; anhedonia, although the Veteran continued to push himself to do things such as going to the gym; loss of appetite; reduced energy; impaired sleep with trouble falling asleep; impaired concentration/focus; feeling of worthlessness; and thoughts of being better off dead, but denied active suicidal ideation in past several years. The Veteran reported that he had been experiencing these symptoms for “a number of years.” The examiner noted that the Veteran reported having panic attacks approximately three to four times over the past two years, with the most recent a few months prior. The Veteran also reported avoiding crowded situations due to feeling unsafe or stuck if there were too many people around him. He reported difficulty concentrating when he is depressed. He endorsed experiencing hypervigilance and exaggerated startle response. The Veteran reported that he lived alone, but was close with his sisters and saw them on a weekly basis. He had a best friend that he kept in touch with and “occasionally” saw. He reported that he was dating, but was reluctant to engage in a romantic relationship. He stated that he continued to work in the Air Force National Guard and denied performance impairment in his job. He reported that since March 2017 he has worked full-time as a machinist for an electric boat company. He described his job performance as good and denied any significant performance impairment. He explained that he got along well with his coworkers and has not missed time out of work or had any issue with reliability. He reported that the job could occasionally be stressful and that at times he experienced anxiety in reaction to triggering stimuli such as loud noises. The Veteran reported that he had not engaged in formal mental health treatment since 2015. He stated that he attended two to three AA meetings a month as part of maintaining his sobriety. He reported taking melatonin at least two times a week to help him sleep, specifically during depressive episodes. The June 2018 VA examiner observed that the Veteran arrived on time to the examination, was casually dressed and appropriately groomed. He further observed that the Veteran was pleasant, cooperative, and maintained good eye contact through the entire interview. He noted that the Veteran’s affect was appropriate to content, his thought process was linear, and that there was no evidence of psychosis. He reported that the Veteran denied suicidal ideation. The aforementioned evidence, lay and medical, reflects that the Veteran’s other specified trauma/stressor related disorder was manifested by depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, panic attacks, and difficulty in establishing and maintaining effective work and social relationships. After careful consideration of the foregoing, the Board finds the Veteran’s other specified trauma/stressor related disorder has been characterized by symptoms and a level of impairment consistent with a 50 percent rating under Diagnostic Code 9440. While the Veteran’s symptoms, to include depression, anxiety, chronic sleep impairment, and panic attacks are consistent with a 30 percent rating, he has exhibited disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships consistent with a higher 50 percent rating. Resolving reasonable doubt in the Veteran’s favor, the Board finds that a higher initial 50 percent rating is warranted for the entire rating period. The Board, however, finds that the Veteran has not met or more nearly approximated the criteria for a 70 percent disability rating or higher for his other specified trauma/stressor related disorder at any time during the appeal period. See 38 C.F.R. § 4.130. The record does not indicate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: 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; and inability to establish and maintain effective relationships. Although the record indicates that the Veteran does exhibit some of the symptoms associated with the criteria for a 70 percent disability rating, such as suicidal ideation and difficulty in adapting to stressful circumstances (including work or a work-like setting), the Board finds that the symptoms he exhibits more closely resemble those described in the criteria for the 50 percent disability rating. In particular, the Board notes that throughout the period on appeal, the Veteran has denied suicidal ideation. Although the Veteran endorsed feeling worthless and having thoughts of being better off dead in the June 2018 VA examination, he denied any active suicidal ideation in the past several years. The June 2018 VA examiner found that the Veteran’s symptomatology was productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks during periods of significant stress, or symptoms controlled by continuous medication. Additionally, when the Veteran was admitted to an inpatient substance abuse detox in April 2015, he endorsed frequent thoughts of self-harm; however, he reported that he never formulated a plan to do so and has not reported any thoughts of self-harm since April 2015. Moreover, the Board notes that although the record indicates that the Veteran has difficulty in establishing and maintaining effective relationships, there is no indication he has an “inability” to do so. Furthermore, while the April 2017 private psychologist determined that the Veteran’s symptomatology was productive of occupational and social impairment with deficiencies in most areas, including work, family relations, judgment, thinking and mood since at least November 2015, a majority of the symptoms he noted as having met the criteria for a disability rating greater than 50 percent, were manifested prior to the period on appeal and were not indicated throughout the entire period on appeal. Specifically, the April 2017 private psychologist noted that the Veteran’s episodic severe intoxication was grossly inappropriate behavior and that his frequent alcohol abuse relapses following treatment demonstrated impaired impulse control. These symptoms were related to his alcohol abuse; however, the Veteran went through an alcohol detoxification program in April 2015, prior to the period on appeal, has been sober since that time, and has not exhibited these symptoms throughout the period on appeal. Thus, the Board finds that the degree of severity of the Veteran’s psychiatric symptoms and functional impairment is not consistent with a 70 percent or higher rating for his other specified trauma/stressor related disorder at any time during the appeal period. In addition, the Board notes there is no evidence of 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, own occupation, or own name. In short, the evidence does not show “total” occupational and social impairment. In summary, the evidence supports a finding that a 50 percent initial rating is warranted for the Veteran’s service-connected other specified trauma and stressor related disorder. To the extent that the Veteran seeks entitlement to an initial rating higher than those previously assigned and those assigned in this decision, the preponderance of the evidence is against the appeal, the doctrine of reasonable doubt is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.