Citation Nr: 21015854 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-67 634 DATE: March 18, 2021 ORDER Entitlement to an evaluation in excess of 70 percent for other specified trauma and stressor related disorder with specific situational phobia prior to February 20, 2018, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 20, 2018, is remanded.   FINDING OF FACT Prior to February 20, 2018, other specified trauma and stressor related disorder with specific situational phobia was manifested by symptoms such as: anxiety; depressed mood; chronic sleep impairment; panic attacks weekly or less often; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and suicidal ideation; all resulting in occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an evaluation in excess of 70 percent for other specified trauma and stressor related disorder with specific situational phobia, prior to February 20, 2018, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1962 to September 1966. The Board issued a July 2019 decision granting a 70 percent evaluation for PTSD prior to February 20, 2018 (now rated as other specified trauma and stressor related disorder). The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims, resulting in a May 2020 Joint Motion for Partial Remand (JMPR). In the JMPR, the parties determined that the Board erred when not discussing whether an evaluation in excess of 70 percent for PTSD and entitlement to a TDIU prior to February 20, 2018, were warranted. Consistent with the findings of the JMPR, the issue of entitlement to a TDIU is moot from February 20, 2018. The Board remanded five separate issues in September 2020. Three of those issues were granted in full and the remaining two issues have not yet been recertified to the Board for further appellate review as of this time. 1. Entitlement to an evaluation in excess of 70 percent for other specified trauma and stressor related disorder with specific situational phobia prior to February 20, 2018 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As explained below, the Board has determined that the current uniform 70 percent evaluation is warranted for the entire period on appeal. The Veteran’s other specified trauma and stressor related disorder with specific situational phobia is assigned an initial 70 percent evaluation under Diagnostic Code 9413, effective June 25, 2014. The Veteran has challenged the initial evaluation. It is assigned a 100 percent evaluation from February 20, 2018. The Veteran’s other specified trauma and stressor related disorder with specific situational phobia is rated by analogy under Diagnostic Code 9413, which pertains specifically to unspecified anxiety disorder. With the exception of eating disorders, all mental disorders are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. Moreover, the Veteran has not requested that another diagnostic code be used. The criteria for a 70 percent rating are as follows: 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 period 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. The criteria for a 100 percent rating are as follows: 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. 38 C.F.R. § 4.130, Diagnostic Code 9413. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, “[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. The RO originally certified the Veteran’s appeal to the Board in April 2018. As a result, the DSM-5 applies. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Accordingly, the Board will not use previously recorded GAF scores to determine the appropriate evaluation for the Veteran’s psychiatric disorder. Golden v. Shulkin, 29 Vet. App. 221 (2018) (“the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies.”). The Veteran has reported symptoms including anxiety, depression, and a phobia of funerals and dead people that is so severe that he has not been intimate with his wife for many years due to seeing her touch a corpse at a funeral. He reports having frequent nightmares involving zombies and dead bodies. VA treatment records show that the Veteran consistently reported anxiety and sleep impairment. A mental status examination from August 2014 shows that the Veteran was anxious, depressed, paranoid, tense, apathetic, and agitated. He was fully oriented, and memory, concentration, judgment, and insight were all good. Thought processes and content were within normal limits. At an April 2015 VA psychiatric examination, the Veteran reported that he had regular contact with his children and grandchildren. He enjoyed singing and was working as a singer/entertainer. The only symptom documented by the examiner was anxiety. The Veteran was well-oriented, with no gross deficits in short or long-term memory. He denied suicidal and homicidal ideation and was able to maintain personal hygiene. The examiner concluded that the Veteran’s disorder manifested in occupational and social impairment with occasional decrease in work efficiency. A March 2017 statement from the Veteran’s wife reported that he has frequent nightmares and chronic sleep deprivation which has caused difficulty concentrating. She reported that she manages his medications because he forgets without reminders. She explained that he can be irritable and prone to angry outbursts over “trivial matters.” At an August 2017 VA psychiatric examination, the Veteran reported an excellent relationship with his wife. He enjoyed fishing and had some friends but did not interact regularly. He became easily agitated and had angry outbursts. Significantly, the Veteran reported having recurrent thoughts of suicide, but did not have current ideation. The examiner reported symptoms of depressed mood, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The Veteran was appropriately dressed and groomed. He maintained appropriate eye contact and was engaged. Thought processes were logical. Ultimately, the examiner concluded that the Veteran’s disorder manifested in occupational and social impairment with reduced reliability and productivity. The Board notes that the Veteran was afforded a February 20, 2018, VA psychiatric examination upon which his current 100 percent evaluation (effective February 20, 2018) is based. While it is technically outside of the period on appeal, from a practical standpoint it is highly unlikely that the symptoms documented in that examination report manifested on that specific day. The Veteran remained married and reported a “fine” relationship with family, few close friends, and denied having any difficulties in his relationships. Reported symptoms were depressed mood, anxiety, panic attacks more than once a week, near-continues panic or depression affecting the bility to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. The Veteran was cooperative, made good eye contact, affect was flat, voice monotone, and he denied current suicidal ideation. The examiner concluded that the Veteran’s disorder manifested in occupational and social impairment with deficiencies in most areas. After a review of the medical and lay evidence of record, the current 70 percent evaluation is appropriate for the entire period on appeal. The evidence suggests that the Veteran’s symptomatology more nearly approximated occupational and social impairment associated with a 70 percent disability rating prior to February 20, 2018. In other words, the Board finds that the preponderance of the evidence is against an evaluation in excess of 70 percent during this period. Neither the lay nor the medical evidence of record more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 100 percent disability evaluation, nor does it demonstrate total occupational or social impairment. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9413. The Board has considered the VA treatment records, including all VA examination reports, private treatment records, and lay statements regarding the impact of the Veteran’s other specified trauma and stressor related disorder with specific situational phobia on his occupational and social impairment prior to February 20, 2018. It is documented that the Veteran has struggled with many interactions, but he has maintained relationships throughout the period on appeal with his wife, children, grandchildren, and a few friends. While the evidence suggests that the Veteran’s symptoms limited his ability to establish and maintain relationships, it clearly did not result in total impairment. Most notable during this period are the Veteran’s symptoms of irritability and suicidal ideation. There is no indication that the Veteran’s irritability resulted in violence or in a persistent danger of hurting others. In addition, there is no evidence that the Veteran’s suicidal ideation rose to the level of a persistent danger to himself. Throughout the entire period, there was no indication of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger in hurting self or others, inability to perform activities of daily living, disorientation of time or place, or memory loss for names of close relatives. This is true even when considering that manifestations of the disability as documented at the February 20, 2018, VA examination most likely predated that examination and existed during the period on appeal. Furthermore, the objective medical conclusions of the VA examiners with respect to the severity of the Veteran’s occupational and social impairment, while not determinative, are not consistent with total occupational and social impairment. The Veteran was employed as a singer for at least a portion of the period on appeal and he has maintained effective relationships with family and a few friends. This is not indicative of total occupational and social impairment. Accordingly, the Board finds that for this period the Veteran does not have total occupational and social impairment. He does have deficiencies in many areas, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 70 percent rating currently assigned. Furthermore, even resolving any reasonable doubt in the Veteran’s favor, the Board finds that he does not meet the requirements for an evaluation greater than the assigned 70 percent schedular rating during this period. To the extent that the Veteran has any of the criteria for a 100 percent rating, see Mauerhan, 16 Vet. App. at 442, the Board concludes that his overall level of disability does not exceed the criteria for a 70 percent rating. This is consistent with VA’s determination to handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. See 38 C.F.R. § 3.344 (a). REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 20, 2018, is remanded. Pursuant to the JMPR, the issue of entitlement to a TDIU prior to February 20, 2018, is raised by the record. The file does not contain a VA Form 21-8940 TDIU application and it does not appear that the Veteran has been asked to complete this form. The form 21-8940 is critical for proper TDIU adjudication as it obtains important information on employability. Remand is necessary in order to provide the Veteran with an opportunity to complete a form 21-8940. Any ensuing development should then be conducted. The matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-8940 and request that he complete it and submit it. Complete any additional development deemed necessary. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. R. Stephens, 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.