Citation Nr: 21012627 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 18-46 885 DATE: March 4, 2021 ORDER A 70 percent rating, but no higher, for a generalized anxiety disorder (anxiety disorder) is granted. Service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran’s anxiety disorder symptoms and overall impairment more nearly approximate occupational and social impairment with deficiencies in most areas, but they have not more nearly approximated total social and occupational impairment. 2. The Veteran’s PTSD is related to the events of his active duty service, to include his in-service stressors. CONCLUSIONS OF LAW 1. The criteria for a 70 percent, but no higher, for an anxiety disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9400. 2. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2002 to July 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO increased the rating for the anxiety disorder to a 50 percent rating effective May 15, 2018, and denied service connection for PTSD. In January 2021, the Veteran presented testimony before the Board. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). A rating in excess of 50 percent for an anxiety disorder. The Veteran’s anxiety disorder is rated as 50 percent disabling pursuant to 38 C.F.R. § 4.130, DC 9400. All acquired psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders. Under this criteria, a 50 percent rating is assigned 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 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 establishing effective work and social relationships. 38 C.F.R. § § 4.130, DC 9411. A 70 percent rating is assigned when 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 assigned when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name. Id. Use of the term “such as” in 38 C.F.R. § 4.130 demonstrates 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. “[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). In the context of a 70 percent rating, section 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 118. In addition, “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.” Id. The United States Court of Appeals for Veterans Claims has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). For the following reasons, a 70 percent rating for an anxiety disorder is warranted. The Veteran’s anxiety disorder symptoms and overall impairment more nearly approximate occupational and social impairment with deficiencies in most areas. For example, the evidence shows that throughout the appeal period, the Veteran reported passive suicidal ideation. See VA examination report (June 2018); VA treatment record (August 2018); Board hearing transcript (January 2021). The Veteran’s statements provided at the June 2018 examination and during the Board hearing show that he had experienced passive suicidal ideation throughout the appeal period. Moreover, the June 2018 VA examiner noted that the Veteran had “constant passive suicidal ideation.” The examiner noted that the Veteran denied active intent due to his family. Therefore, a 70 percent rating for an anxiety disorder throughout the appeal period is warranted. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (stating the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.”). For the following reasons, a rating higher than 70 percent for an anxiety disorder is not warranted. Throughout the appeal period, the Veteran reported sleep impairment, avoidance of others, avoidance of driving due to traffic, suicidal ideation, depression, feeling unmotivated, flattening affect, disturbances of motivation and mood, impaired impulse control, intermittent inability to perform activities of daily living such as maintenance of minimal personal hygiene, difficulty concentrating, and suspicion of others. See VA examination report (June 2018); Board hearing transcript (January 2021). He also reported that he did not like crowds and that he did not often leave his home. See Board hearing transcript (January 2021). To this extent, although the Veteran reported the above symptoms, his anxiety disorder did not more nearly approximate total social and occupational impairment. For example, with respect to social impairment, although the Veteran indicated that he did not leave his home, avoided others, the evidence shows that he married in 2015 and had a son in 2016. He stated that his marriage was “going well” and that his son was his “world.” See VA examination report (June 2018). Additionally, he stated that he had a “main group of friends” and neighbors that he spent time with. Id. Notably during a May 2018 private neuropsychological evaluation, the Veteran reported that he had “many” close, supportive long-lasting friendships. Also, during the appeal period, the June 2018 VA examiner noted that the Veteran arrived early to his appointment, was pleasant, willing to answer questions, and that his mood and behavior were appropriate. As to occupational impairment, although the Veteran reported during the January 2021 Board hearing that his anxiety impacted his employment, as he was unmotivated and had difficulty concentrating, he reported that he was employed as a water operator/utility technician for the past 10 years. See also private neuropsychological evaluation report (May 2018). In sum, the evidence shows that the Veteran continued to be married throughout the appeal period and had good relationships with his wife and son. Additionally, the Veteran reported that he had friends and that he spent time with them. Therefore, the evidence does not demonstrate that the Veteran’s anxiety disorder more nearly approximated total social impairment. Also, although the Veteran reported that he was employed. Thus, the evidence does not demonstrate that the Veteran’s anxiety disorder more nearly approximated total occupational impairment. Accordingly, a 100 percent rating for an anxiety disorder is not warranted. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection for PTSD requires (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between a veteran’s present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). If PTSD was diagnosed by a medical professional, VA must assume that the diagnosis meets the DSM-IV criteria relating to the adequacy of the symptomatology and sufficiency of the stressor. Cohen, 10 Vet. App. at 153. The Veteran claims that his PTSD is due to in-service stressors. See Board hearing (January 2021). Specifically, he reports that during service, his military occupational (MOS) and military duties included a bow gunner, which consisted of nighttime operations on a ship. See, e.g., VA 21-0781, statement in support of claim for PTSD (August 2018). He explained that he feared for his life during nighttime operations, as he and a few other fellow servicemembers were on a ship in the middle of the night, 1,000 miles away from home, and that he was “waiting for somebody to shoot.” See Board hearing (January 2021). Additionally, he related his PTSD to the loss of fellow service members. See private neuropsychological evaluation report (May 2018). For the following reasons, service connection for PTSD is warranted. The medical evidence shows a diagnosis of PTSD. See private neuropsychological evaluation report (May 2018). Specifically, a May 2018 private neuropsychological evaluation report shows that a private psychologist and postdoctoral fellow interviewed the Veteran, documented his reported in-service stressors, and diagnosed PTSD. As to the in-service stressor, the Veteran’s DD Form 214 shows that he served in the Navy aboard the USS Ronald Reagan and that his MOS was an air launched weapons technician. Furthermore, throughout the appeal period, the Veteran consistently reported the above in-service stressors, to include to his VA treatment providers. See VA treatment record (September 2018). The Board finds that the Veteran’s reported in-service stressors regarding his experiences on a ship, are consistent with his MOS and his service on the USS Ronald Reagan. Therefore, the Veteran’s in-service stressors are conceded. In the May 2018 private neuropsychological evaluation report, the private psychologist and the postdoctoral fellow diagnosed PTSD and related it to the Veteran’s “past traumatic events related to his military career.” The rationale was based on the private psychologist and the postdoctoral fellow’s clinical experience and the Veteran’s accounted history and his symptoms. The private psychologist and the postdoctoral fellow found that the Veteran’s PTSD was caused by his exposure to traumatic events in service. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s PTSD is related to a valid in-service stressor. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for PTSD is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.