Citation Nr: 21012873 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 19-10 889 DATE: March 5, 2021 ORDER Entitlement to an initial 10 percent rating for other specified trauma and stress related disorder, is granted. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran’s other specified trauma and stress related disorder caused occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 2. At no time during the appeal period did the Veteran’s other specified trauma and stress related disorder cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, reduced reliability and productivity, deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for an initial 10 percent rating for other specified trauma and stress related disorder, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Codes (DCs) 9499-9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1971 to April 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in November 2017 by a Department of Veterans Affairs (VA) Regional Office. In August 2019, the Board denied the Veteran’s claims for entitlement to an initial compensable rating and entitlement to an earlier effective date for service-connected specified trauma and stress related disorder. Thereafter, the Veteran appealed that portion of the Board’s decision as to the issue of an initial compensable rating for other specified trauma and stress related disorder, to the United states Court of Appeals for Veterans Claims (Court). In September 2020, the parties entered into a Joint Motion for Partial Remand (JMPR) and the Court remanded the matter to the Board to comply with the Court’s order. The matter has been returned to the Board for further appellate review. Entitlement to an initial compensable rating for other specified trauma and stress related disorder, claimed as PTSD. 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 in light of 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. The Veteran’s service-connected other specified trauma and stress related disorder, claimed as PTSD, has been evaluated as 0 percent disabling, as of October 13, 2017, pursuant to DC 9499-9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. A noncompensable rating is warranted where a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. Id. A 10 percent rating is warranted when there is 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. Id. A 30 percent rating is warranted when there is 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 United States Court of Appeals for the Federal Circuit 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, DC 9411. 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). The Board notes that the revised DSM-5, which, among other things, eliminates GAF scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug. 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, No. 16-1208 (February 23, 2018). Turning to the merits of the Veteran’s claim, the Board has reviewed all the evidence of record and finds that a 10 percent rating is warranted. The evidence shows that the Veteran received a VA examination in October 2017 where he was diagnosed with other specified trauma and stressor-related disorder as the Veteran did not meet the full criteria for PTSD. The examiner found that the Veteran’s symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. Based on this finding, the Veteran was assigned a noncompensable rating. The Board notes, however, that during the examination the Veteran reported having intrusive thoughts and panic attacks after being “triggered” from a movie. In addition, the examiner found that it is plausible that with treatment (including evidence-based medication and/or psychotherapies for PTSD) the Veteran may be able to experience a significant reduction in symptoms. Given these findings, the Board concludes that there is evidence to suggests the Veteran’s psychiatric symptoms may be transient and may require medication. As such, the Board finds the evidence is in equipoise as to whether a 10 percent rating is warranted. Thus, resolving all doubt in favor of the Veteran, a 10 percent rating is granted. However, a rating greater than 10 percent is not warranted as the Veteran’s symptoms were not of the severity, frequency, or duration to warrant a higher rating. During his October 2017 examination, the examiner noted that the Veteran’s only symptom related to his diagnosis was anxiety. Additionally, the Veteran endorsed panic attacks approximately two months prior after he watched a movie where people were in a boat drowning. He further reported that after watching the movie, the Veteran thought of his own experiences with recovering bodies, which resulted in distressing thoughts about what it would have been like to die in such a way, and had a loss of interest in his usual activities for a couple of weeks. While the Veteran reported that he had intrusive thoughts regarding such events, he also reported that he had been doing a better job coping with the memories since then. Thus, his symptoms of panic attacks and intrusive thoughts did not occur with such severity, frequency, or duration to warrant a higher rating. Further, the examination report also indicates that the Veteran, at the time, had been married for 47 years, and while there was a difficult period following his retirement from the military, the marriage was described as strong and loving. Additionally, the Veteran has two children and a step-grandson, which he reported to have good relationships with. In August 2014, the Veteran reported that he retired, after deciding that he was able to do so comfortably. He denied ever being fired and that he does not miss working. The Veteran also noted that he enjoys gardening, exercise, reading and following current events. Finally, the examination report indicated that the Veteran takes melatonin to help his sleep, and while a medical provider has prescribed medication to assist with sleep, he reported that he has taken it on and off for 6 years to help him go back to sleep if he wakes up. At most, the Veteran’s symptoms may be characterized as mild or transient as evidenced by his own report noting that his panic attacks and intrusive thoughts were “triggered” by a movie, which occurred two months prior. The Board also recognizes that in a May 2019 written correspondence, the Veteran, by way of his representative, endorsed symptoms of anger, anxiety, emotional numbing, flashbacks, guilt, heavy use of alcohol, intrusive thoughts, lack of emotions, panic attacks, problems with communication, problems getting along with people, and unable to share feelings; however, there is no other medical or lay evidence of record that would indicate these symptoms occurred with such severity, frequency, or duration to warrant a higher rating. In fact, the record shows that this is the only time these symptoms have been reported. Furthermore, the only other evidence of record concerning the Veteran’s psychiatric disorder is his October 2017 VA examination which determined that his symptoms were not severe enough to interfere with occupational and social functioning. Moreover, while the examiner noted the Veteran described multiple symptoms associated with PTSD, the examiner found that his symptoms of PTSD were subclinical in nature and that he did not meet the criteria for PTSD. The record also shows that the Veteran’s symptoms have not caused any significant social impairment as he reported that he has close relationships with his children and has maintained a marriage of 47 years which he described as loving and supportive. He reported that he has regular contact with his brother, he remains in contact with friends he made in the military, and he spends time with out-of-state friends yearly. Additionally, the evidence of record does not indicate that the Veteran’s symptoms interfered with his occupational functioning. In this regard, the Veteran reported that he retired in 2014, because he was able to do so comfortably, nor has he reported any decrease in work efficiency or periods of inability to perform occupational tasks. (Continued on the next page)   The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected other specified trauma and stress related disorder; however, the Board finds that the Veteran’s psychiatric symptomatology has not worsened and has been fairly stable without the need for treatment or medication. As noted above, his symptoms are transient at best. Therefore, assigning staged ratings is not warranted. Further, neither the Veteran, nor his representative, have raised any other issues, nor have any other issues been reasonably raised by the record, in connection with his initial rating claim. Doucette v. Shulkin, 28 Vet. App. 366 (2017). For these reasons, the Board concludes a 10 percent initial rating, but no higher, is granted. K. R. LAFFITTE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite 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.