Citation Nr: 21013215 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 10-36 548 DATE: March 9, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to an initial rating in excess of 30 percent prior to July 22, 2011 and in excess of 70 percent thereafter for anxiety disorder not otherwise specified (NOS) is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran has a current diagnosis of PTSD based on in-service stressor events involving fear of hostile military or terrorist activity. 2. Prior to July 22, 2011, the Veteran’s anxiety disorder NOS generally resulted in occasional occupational and social impairment due to such symptoms as a depressed mood; anxiety; suspiciousness; chronic sleep impairment; and mild memory loss, although he was generally functioning satisfactorily as to routine behavior, self-care, and normal conversation. 3. Effective July 22, 2011, the Veteran’s anxiety disorder NOS generally has resulted in less than total occupational and social impairment due to such symptoms as a depressed mood; anxiety, and; chronic sleep impairment, although he is generally functioning satisfactorily, without evidence of delusions, hallucinations, or other detachments from reality. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 U.S.C. §§ 3.303, 3.304. 2. The criteria for an initial rating in excess of 30 percent prior to July 22, 2011 and in excess of 70 percent thereafter for anxiety disorder NOS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.129, 4.130 Diagnostic Code 9413. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1980 to August 1980, from September 2002 to September 2004, from February 2006 to June 2006, and from July 2006 to December 2008. His awards include the Army Commendation Medal and Combat Action Badge. This case initially came before the Board of Veterans Appeals (Board) on appeal from January 2009 and May 2009 rating decisions. In November 2012, the agency of original jurisdiction (AOJ) assigned a 70 percent rating for anxiety disorder NOS, from July 22, 2011. In a November 2016 decision, the Board denied service connection for PTSD; granted a 30 percent rating, but no higher, for anxiety disorder NOS prior to July 22, 2011; and denied a rating in excess of 70 percent for anxiety disorder NOS beginning July 22, 2011. The Veteran appealed these determinations to the United States Court of Appeals for Veterans Claims (Court). In September 2017, pursuant to a Joint Motion for Partial Remand (Joint Motion), the Court vacated and remanded that portion of the Board’s November 2016 decision involving the issues currently on appeal. In October 2017, May 2019, and October 2020 the Board remanded the claims for additional development. The appeal is now back before the Board. 1. Entitlement to service connection for PTSD The Veteran seeks service connection for a psychiatric disability, claimed as PTSD. He asserts that such a disability had its onset in service, or is the result of a service-connected disability. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C. § 5107. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2014). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of a veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304 (f)(3). As an initial matter, the Board notes the Veteran had active duty service in Iraq in 2006. As such, his exposure to hostile military or terrorist activity is acknowledged by the Board. In the development of this claim, multiple VA medical reports and opinions have been obtained. The Veteran has been afforded VA psychiatric examinations in April 2009, July 2011, and November 2020. These examiners found that although the Veteran’s exposure to hostile military or terrorist activity meets the criteria for a PTSD stressor, his subsequent symptoms do not warrant such a diagnosis. The Veteran has, however, also received VA outpatient psychiatric treatment on a frequent basis since 2009, and several of his treating VA health care providers have diagnosed PTSD based on his experiences during active military service. As such, the Board finds that the evidence is at least evenly balanced as to whether the Veteran has a current diagnosis of PTSD based on in-service stressor events involving fear of hostile military or terrorist activity. 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. 2. Entitlement to an initial rating in excess of 30 percent prior to July 22, 2011 and in excess of 70 percent thereafter for anxiety disorder NOS As an initial matter, the Board acknowledges that the AOJ has not yet rated the Veteran’s PTSD, for which service connection has been awarded herein. Nevertheless, adjudication of the Veteran’s appeal for a higher initial rating for anxiety disorder at this time is not found to be prejudicial. Specifically, the Board notes that psychiatric disabilities are all rated as a single disability under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.125 et seq. Thus, in the present case, the entirety of the Veteran’s psychiatric symptomatology will be presumed to be resulting from his service-connected psychiatric disabilities, and all of his psychiatric symptoms will be considered to determine the severity of his service-connected psychiatric disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Disability ratings are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be “staged.” Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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 required for that rating. 38 C.F.R. § 4.7. Anxiety disorder is rated under Diagnostic Code (DC) 9413, which is evaluated under the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. Under the General Rating Formula, 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). The General Rating Formula provides that 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 and maintaining effective work and social relationships. A 70 percent disability rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, thinking, or mood, due to symptoms such as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships. A 100 percent disability 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; or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9413. In evaluating psychiatric disorders, the Board is mindful that the 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 only 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 Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated that “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.” It was further noted that “§ 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.” Under the General Formula, the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). As part of his claim, the Veteran has been afforded multiple VA psychiatric examinations and outpatient treatment. Medical records from the Social Security Administration (SSA) have also been obtained and considered. This evidence will be addressed below. As noted above, the Veteran was recently awarded staged ratings for his anxiety disorder NOS, consisting of a 30 percent rating prior to July 22, 2011, and a 70 percent rating effective from that date. After considering the totality of the record and affording the Veteran the full benefit of the doubt, the Board finds that initial ratings in excess of those already awarded are not warranted. Considering first the period prior to July 22, 2011, VA outpatient treatment records dated from 2008 to 2011 indicate such symptoms as anxiety, a depressed mood, intermittent sleep disturbance, jumpiness, startle reactions, irritability, and forgetfulness. At an August 2008 SSA psychiatric evaluation the Veteran reported anxiety and irritability, with a shortened frustration tolerance, intense response to unexpected stimuli, and sadness. He reported frequently interrupted sleep with frequent nightmares. His socialization was noted to be adequate but impaired due to difficulty controlling his frustrations. The Veteran also reported feeling inadequate as he was unable to maintain his former level of functioning because of back pain. His wife reported that the Veteran was impulsive, argumentative and recalcitrant. He was noted to live with his wife and children, to take care of his personal hygiene and feeding and to attend to his employment duties at Fort Buchanan. He reportedly maintained adequate relations with neighbors and relatives and attended church on occasion. The Veteran was noted to be well-developed and well-groomed with normal psychomotor activity and spontaneous, relevant and logical speech. His mood was anxious with congruent affect. His thought processes were well-organized, goal oriented, and without derailment. The Veteran denied suicidal or homicidal ideas, phobias and delusions. No perceptual disturbances were recognized and the Veteran seemed cooperative and well oriented to time and place. He was noted to have adequate recent and distant memory and fair insight and judgment. No evidence was found of psychiatric hospitalization, panic attacks, perceptual disturbance, or suicidal or homicidal ideation. The Veteran showed adequate socialization though he was increasingly avoidant since he was unable to control his frustrations. In assessing the Veteran’s overall mental functioning, the SSA examiner determined that his psychiatric condition would result in mild limits on activities of daily living and a moderate impact on social functioning, but no difficulties in maintaining concentration, persistence, or pace. More specifically, the Veteran’s mental condition was found not to be a significant limit to most things. A moderate impact was assessed however on: the ability to perform activities within a schedule and maintain regular attendance and be punctual; ability to work in coordination with or proximity to others without being distracted by them; ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; ability to interact appropriately with the general public; ability to accept instructions and respond appropriately to criticism from supervisors; ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and ability to respond appropriately to changes in the work setting. The report noted that there would be no marked impact on any functionality from the Veteran’s condition. The SSA examiner opined that the Veteran had a moderate mental condition due to physical ailments and life circumstances. He stated that the Veteran was well-oriented, spontaneous, relevant, and goal-oriented with anxious mood. He showed no cognitive difficulties or limitations and his attention, concentration, memory and intellectual capacities were adequate. In January 2009, the Veteran underwent a VA examination to assess the nature and severity of his mental health condition. He reported jitters, irritability, intolerance to crowds, being socially withdrawn and verbally aggressive, having a depressed mood, trouble sleeping with frequent awakenings and nightmares, and frustration due to physical limitations. His appearance was clean, his speech spontaneous, his attitude cooperative, his mood hyper, his affect constricted, and his attention intact. He was fully oriented and his thought process and content were unremarkable with no delusions or hallucinations. His judgment and insight were appropriate. There was no finding of inappropriate behavior, obsessive/ritualistic behavior, panic attacks, homicidal/suicidal thoughts, or episodes of violence. The Veteran’s impulse control was good and he was able to maintain personal hygiene and manage his financial affairs. His remote, recent, and immediate memory was normal and he had no problem with activities of daily living. He was noted to have mild mental disorder symptoms that were controlled by medication. At an April 2009 VA examination the Veteran reported nightmares, irritability, anxiety, occasional flashbacks and depression. He described good relations with his wife and children, and reportedly has kept in contact with closer old friends and one elderly neighbor. He reported occasionally breaking items when he got very angry. The results of his mental status examination were largely similar to the previous VA examination, except for an appropriate affect, a tired mood, and mildly impaired immediate memory. At a June 2010 VA examination the Veteran reported a sad mood on some days associated with his physical conditions and pain. He also reported symptoms of depression on those days. His mental status was in line with previous examinations, according to the examiner. The issue in this appeal is whether the Veteran’s associated psychiatric symptoms caused the level of impairment required for a disability rating of 50 percent or higher prior to July 22, 2011. The Board concludes that the Veteran’s symptoms did not cause such a level of impairment, as his symptoms more closely approximated the symptoms associated with a 30 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. The above-noted VA and SSA treatment records, as well as the January 2009, April 2009, and June 2010 VA examination reports show that the Veteran’s anxiety disorder was chiefly manifested by symptoms associated with a 30 percent rating, including a depressed mood, anxiety, irritability, panic attacks, chronic sleep impairment, and forgetfulness. He also reported symptoms that are not listed with a specific rating, such as insomnia, nightmares, and sudden anger and agitation. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. See 38 C.F.R. § 4.126. The Veteran reported that these symptoms were generally not present at all times, but would increase in severity in certain stressful situations, such as interacting with others at work or in crowds. Furthermore, these symptoms are essentially similar to those which are contemplated by the assigned 30 percent rating for this period. The Board also finds the level of impairment caused by the Veteran’s symptoms prior to July 22, 2011 more closely approximates the level associated with a 30 percent rating. For this period, the Veteran experienced only occasional periods of occupational and social impairment, but was generally functioning satisfactorily, with routine normal behavior, self-care, and conversation. During the various VA and private examinations, the Veteran reported that he had been married to his wife of many years and maintained contact with his adult children, as well as some extended family and other friends. He also consistently denied any history of legal trouble. All examiners described him as alert and fully oriented in all spheres, with adequate memory, both recent and remote. He was able to communicate with care providers in a coherent, polite, cooperative, relevant, and logical fashion, and he denied psychoses or delusions. He at all times denied suicidal or homicidal ideations or plans. While he reported generally avoiding crowds, he occasionally went shopping and otherwise left his home on occasion to work, attend medical appointments, and perform other daily activities. Occupationally, he both worked for many years in a civilian job as a welder, as well as performing inactive duty training, active duty for training, and/or active duty as a member of the Army National Guard. He reportedly retired from both his National Guard service and his civilian occupation. Overall, the preponderance of the evidence is against an initial rating in excess of 30 percent for anxiety disorder NOS prior to July 22, 2011. Considering next the period beginning July 22, 2011, the Veteran has been granted a 70 percent rating effective as of that date. During this period, he has been afforded VA examinations in July 2011, June 2014, and November 2020, as well as VA outpatient treatment, the records and reports of which have been obtained. At a July 2011 VA examination the Veteran reported sleeping difficulties, nightly anxiety, unspecified nightmares, irritability, exaggerated startle response, sadness and low self-esteem. His mental status was largely unchanged. The examiner noted that the Veteran would have no or only slight problems with most activities of daily living due to his condition, but that he would be restricted in his travel and his household chores, mostly due to physical limitations. The examiner indicated the Veteran’s symptoms would affect family relations, work and mood, largely due to mood instability. During a June 2014 VA examination, the Veteran’s speech was coherent, logical, and relevant. The examiner reported that the Veteran had not experienced a significant decrease in functionality and had not been hospitalized, and that there was no evidence of psychological crisis or required changes in pharmacological treatment in relation to the service-connected mental condition. There was no complete limitation on the type of social and functional activity as there was no evidence of recurrent crisis, hospitalization or pharmacotherapy failure. The Veteran’s major complaint was his cervical pain. The examiner determined that the Veteran’s mental condition was stable and the Veteran’s symptoms were not severe enough to interfere with his daily activities and social functioning. The examiner characterized the Veteran’s impairment as being productive of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to the anxiety disorder signs and symptoms, but with generally satisfactory functioning, routine behavior, self-care, and normal conversation. He concluded that the Veteran was not unemployable solely on account of his mental condition. Most recently, the Veteran underwent a VA examination in November 2020. The claims file was reviewed in conjunction with the examination. The Veteran reported that he was currently retired and living with his wife of many years. He also had adult children who were living on their own. He denied any history of legal problems or criminal behavior. On examination, the examiner described the Veteran as well-developed and well-nourished, with normal behavior and responses. His hygiene and grooming were within normal limits, and he was alert and fully-oriented. He displayed no psychomotor retardation or agitation, and his thought processes were logical and coherent. No delusions or hallucinations were present. The Veteran also denied panic attacks, phobias, compulsions, or homicidal or suicidal thoughts or plans. His mood was relaxed and his responses were broad and appropriate. Judgment and insight were also good, and his remote and immediate memory were within normal limits. The examiner determined that the Veteran’s anxiety disorder did not preclude him from working should he decide to return to employment, and he was competent to manage his household finances and all activities of daily living. After considering these examination reports as well as the VA outpatient records from July 22, 2011 to the present, the Board concludes that a disability rating in excess of 70 percent is not warranted. The Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with the currently-assigned 70 percent rating. While the Veteran has experienced some occupational and social impairment due to his anxiety, this impairment is not total, as is required for a 100 percent rating. The above-noted VA examinations and VA treatment records indicate that the Veteran was without total or severe deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. During the various VA examinations, the Veteran reported that he has been married to his wife of many years and maintains contact with his adult children. He has also consistently denied any history of legal trouble. All examiners have described him as alert and fully oriented in all spheres, with adequate memory, both recent and remote. He has been able to communicate with care providers in a coherent, polite, cooperative, relevant, and logical fashion, and he has denied psychoses or delusions. He has also denied suicidal or homicidal ideations or plans. Occupationally, the Veteran had a long history of full-time work prior to his retirement, and could return to work if he so-desired, according to the November 2020 VA examiner. The Board recognizes that the Veteran continues to experience depression, heightened anger and irritability, and anxiety. These symptoms do not, however, result in total occupational or social impairment, according to the evidence of record. He has not displayed 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; or memory loss for names of close relatives, own occupation, or own name. His thought processes have all been within normal limits, and no cognitive impairment has been noted by any examiner. Overall, the preponderance of the evidence is against a disability rating in excess of 70 percent at any time during the pendency of this appeal. The Board further notes that entitlement to a TDIU was denied in a May 2020 Board decision. Overall, in conjunction with the appeal for a higher initial rating for the service-connected psychiatric disability, no other related issues have been raised by the Veteran or his representative, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 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). In conclusion, the preponderance of the evidence is against an initial disability rating in excess of 30 percent, prior to July 22, 2011, and a rating in excess of 70 percent, since that date, for the Veteran’s service-connected psychiatric disability. As a preponderance of the evidence is against the award of higher ratings, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, 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.