Citation Nr: 21014466 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 09-48 943 DATE: March 12, 2021 ORDER Entitlement to an initial disability rating in excess of 30 percent for anxiety disorder prior to January 12, 2016. Entitlement to an initial disability rating in excess of 50 percent from January 12, 2016 for other specified trauma and stressor related disorder and major depressive disorder (formerly rated as anxiety disorder) is denied. FINDING OF FACT 1. Prior to January 12, 2016, the severity, frequency, and duration of the Veteran’s psychiatric symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. Since January 12, 2016, the severity, frequency, and duration of the Veteran’s psychiatric symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW 1. The criteria for a disability rating in excess of 30 percent for anxiety disorder prior to January 12, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413, 9410. 2. The criteria for a disability rating in excess of 50 percent from January 12, 2016 for other specified trauma and stressor related disorder and major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413, 9410. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2004 to July 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. This matter was last before the Board in November 2018, when it was remanded for further development. Increased Rating Disability ratings 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 Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s specified trauma and stressor related disorder and major depressive disorder is evaluated under Diagnostic Code 9410, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. 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, weekly or less often panic attacks, chronic sleep impairment, and 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 in understanding complex commands; impairment of short- and long-term memory such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). By way of history, the Veteran was granted service connection for anxiety disorder with a 30 percent evaluation in a February 2009 rating decision with an effective date of July 21, 2008. The Veteran appealed the assigned rating, and in an April 2016 rating decision, the disability was recharacterized as other specified trauma and stressor related disorder and major depressive disorder and the rating was increased to 50 percent effective January 12, 2016, the date of a VA examination. The Veteran continued to seek a higher rating, and the case is now before the Board. 1. Entitlement to an initial disability rating in excess of 30 percent prior to January 12, 2016 for anxiety disorder Turning to the evidence, the Veteran presented for a VA examination in November 2008. During the examination, the Veteran indicated not currently receiving mental health treatment. He reported he has never been married and has no children. For his leisure activities, he enjoys sports, movies, and meeting friends at bars, but has transient discomfort in crowds. The examiner summarized the Veteran’s current psychological functional status as good skills and active socially. The Veteran’s general appearance was clean, neatly groomed and appropriately dressed. His psychomotor activity, speech, thought process, and thought content were unremarkable. His attitude towards the examiner was cooperative and friendly. He had full affect, good mood and was oriented to person, time and place. He endorsed sleep impairment secondary to combat nightmares. He denied history of suicide attempts, or any current suicidal or homicidal ideation. After a review of the record and an interview, the examiner summarized that the Veteran experiences occasional decrease in work efficiency at school and intermittent period of inability to perform school task. For the period prior to January 12, 2016, the Board finds that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 30 percent rating, and resulted in a level of impairment no more than 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). In this case, a review of the VA examination, VA mental health progress notes and the Veteran’s lay statement show that the Veteran’s service-connected psychiatric disability has been manifested by symptoms consistent with a 30 percent rating to include anxiety, depressed mood, and irritability that occur weekly or less often, and chronic sleep impairment. The Board finds the severity, frequency, and duration of the Veteran’s 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. The records show he was functionally well and socially active. In short, the preponderance of the evidence weighs against finding that Veteran’s symptoms resulted in the level of impairment required for a higher rating. The criteria for a 50 percent or higher rating are not met and the appeal is denied. 2. Entitlement to a disability rating in excess of 50 percent from January 12, 2016 for other specified trauma and stressor related disorder and major depressive disorder The Veteran presented for another VA examination in January 2016. He reported having a positive relationship with his brother, sister and mother. He reported a healthy family and support network, with friends from service and college. He was single at this time of the examination but had been involved in stable intimate relationships in the past. He had no children of his own. He reported having a therapy dog whom he values highly. The Veteran reported being employed by the VA for the past 15 months. He endorsed anxiety, feeling depressed and having to miss work sometimes because of depression. He endorsed passive suicidal ideation but denied any current intent or history of attempts or gestures. He endorsed sleep impairment, noting that he averages one to three hours of sleep per night. Upon examination and interview of the Veteran, the examiner indicated the Veteran’s symptoms manifested in depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; and suicidal ideation. The examiner noted the Veteran had adequate hygiene and grooming. His affect, eye contact and gross psychomotor skills were within normal limits. His speech was within normal limits in rate, volume, fluency and prosody. His fine motor ability was adequate to allow him to hold and use a pencil easily and to manipulate test materials without trouble. He was alert and oriented to all spheres and his thought processes were linear, logical and goal directed. He was attentive and focused. He was appropriately interactive and exhibited normal comprehension and expression, as evidenced by following simple directions and responding to questions directly and on point. The examiner noted that the Veteran appeared to be forthcoming in his responses to questions and was a reliable historian. He denied perceptual disturbances, and no disordered thought processes were observed by the examiner. There was no obvious evidence of sensory impairment. The Veteran appeared to have intact judgment and impulse control, as demonstrated by his behavior during the interview. The examiner noted that the Veteran endorsed symptoms that are consistent with the criteria for a diagnosis of other specified trauma and stressor related disorder, and major depressive disorder. The examiner further indicated that was a continuation and progression of the previous diagnosis of anxiety disorder not otherwise specified. The examiner stated that despite the distress of his chronic symptoms, the Veteran was functioning admirably well; it appears that he had been able to manage his experiences with bravery, courage, and a positive support system. He has clearly struggled with his symptoms over the years, but he appeared to have done well in coping with these experiences with strong character, determination, tenacity, and the love and support of his family and his dog. The examiner additionally noted that the Veteran was clearly still distressed by events and continues to experience the impact emotionally and psychologically through symptoms of both anxiety and depression. The examiner explained that in spite of this, the Veteran's self-report suggests that his functioning was not severely impaired. The examiner noted that he maintains full-time employment serving other veterans with similar struggles, has positive and supportive relationships, and engages in vocational activities. His self-report suggests that while the Veteran's symptoms are certainly painful/distressing, he is able to maintain high levels of functioning with the positive support of close others and active practice. The Veteran presented for the latest VA examination in September 2019. During the examination, the Veteran reported that has never married, has no children but lives with roommates and his dog. He grew up with his mother and two siblings and has a close relationship with his mother. The Veteran reported that he drinks alcohol on a daily basis, but it does not have an effect on his work or ability to be responsible for daily activities. Upon examination, the examiner indicated the Veteran’s symptoms manifested in depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; and suicidal ideation. Observing his behaviors, the examiner noted the Veteran was on time, well groomed, spoke in a clear and logical manner. The examiner indicated that his intellectual ability is likely at least in the average range. Eye contact was good, and his mood was flat. There was no indication of paranoia or delusions. His attitude about life was existential and not hopeful. He showed good judgment and insight. The examiner noted the Veteran had passive suicidal thoughts. He is very close to his mother and finds his dog a comfort. Additionally, the examiner noted that the Veteran’s mother and dog composed his support system with the addition of his mental health providers. After a review of the record and an interview, the examiner summarized that the Veteran had an 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 medication. Treatment records from January 12, 2016 document he was sleeping better and feeling more refreshed, had fluctuations in mood, but an absence of suicidal or homicidal ideation, hallucinations or delusions. He was generally stable and consistent functioning. See, August 2017 and October 2019 VA treatment notes. Based upon the foregoing, the Board concludes that for the period from January 12, 2016, the Veteran’s symptoms did not cause the level of impairment that more nearly approximates the criteria for a disability rating of 70 percent or higher. The Board acknowledges symptom of difficulty in adapting to periods of significantly stressful circumstances, to include the Veteran’s self-report of occasionally getting out of his car and physically fighting with other drivers over road rage, reported during the September 2019 VA examination. Notably, even when considering this symptom along with the other symptoms, the examiner opined that the Veteran only had an 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. Although the Veteran reported some suicidal ideation and occasional road rage on the recent examination, the severity, frequency, and duration of such symptoms has not risen to the level contemplated by the 70 or 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records. Moreover, there is no indication that such passive suicidal ideations or road rage resulted in social and occupational impairment with deficiencies in most areas. The Veteran continues to maintain full-time employment serving other veterans with similar struggles, has positive and supportive relationships, and engages in vocational activities. Ultimately, it is the impact on functioning that results from the symptomatology that dictates the evaluation to be assigned. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013) ("[38 U.S.C.A.] § 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"). The Board is sympathetic to the Veteran’s statements that his psychiatric disability is worse than currently evaluated. However, the lay statements, when considered in conjunction with the medical findings as provided in the examination reports and the clinical records do not demonstrate occupational and social impairment with deficiencies in most areas. Based on the foregoing, the Board finds that a disability rating in excess of 50 percent from January 12, 2016 is not warranted. The Board notes that in the January 2021 Appellant's Brief, the Veteran's representative generally referred to an extraschedular rating for the Veteran's mental disorders without providing specific argument. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is adequate, and no referral to the Director of the Compensation Service for consideration of an extraschedular rating is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Notably, the rating criteria for psychiatric conditions employ the phrase "such as," indicating that they are examples of the types of symptoms needed to meet the criteria, rather than an exhaustive list. Thus, the Veteran’s mental health symptoms fall within the rating criteria and referral for extraschedular consideration is not warranted. As a final matter, in the January 2021 Appellant's Brief, the Veteran's representative also argued that if the claim was not granted, then a remand was warranted as the Veteran’s last examination was 17 months ago and was “too old to adequately evaluate the current severity of this disability.” However, the representative provided no argument as to why a new examination was needed other than the age of the examination. The Board finds the examination is sufficiently contemporaneous to the decision and remand is not required. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007) (The mere passage of time between a prior VA medical examination and the adjudication of a claim is not sufficient to compel VA to provide the veteran with a new, contemporaneous medical examination.) In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, 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.