Citation Nr: 21026233 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 14-32 607 DATE: April 30, 2021 ORDER Entitlement to a rating of 50 percent, but no higher, for unspecified trauma-and stressor-related disorder with traumatic brain injury (TBI) from October 17, 2010 to December 2, 2013 is granted. FINDING OF FACT From October 17, 2010 to December 2, 2013, unspecified trauma-and stressor-related disorder with traumatic brain injury was not manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood nor total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating of 50 percent, but no higher, for unspecified trauma-and stressor-related disorder with traumatic brain injury from October 17, 2010 to December 2, 2013 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.130; Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2006 to October 2010. In November 2017, the Veteran appeared at a hearing before a Veterans Law Judge who has since retired from the Board. In November 2020, the Board sent the Veteran a letter asking him if he wished to have another Board hearing. As indicated in the letter, when the Veteran did not respond it was concluded that he does not wish to appear for another hearing. Entitlement to a rating higher than 50 percent disabling for unspecified trauma-and stressor-related disorder with TBI prior to December 2, 2013 Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the ‘staging’ of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran appeals the denial of a rating higher than 50 percent for his service-connected unspecified trauma-and stressor-related disorder with TBI prior to December 2, 2013. The Veteran’s disability is rated under 38 C.F.R. § 4.130, DC 9411 and is subject to the criteria listed under the General Rating Formula for Mental Disorders. Evaluation under § 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity, and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Under DC 9411, a 70 percent rating is warranted for 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 evaluation is warranted where 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall 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. When verbal or physical aggression, motivation, impulsivity, or irritability consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Initially, the Board notes that the Veteran argues that the appeal period should be from October 17, 2010. When this issue was first before the Board in April 2018, the Board stated that the appeal was from an August 2011 rating decision. The Board noted that the Veteran was granted service connection in August 2011 for anxiety disorder NOS and assigned a 30 percent rating, effective from October 17, 2010, the day following discharge from service. It was further noted that the Veteran challenged the initial rating and was afforded another VA examination in July 2014. As stated at that time, based on the July 2014 VA examination and other medical evidence of record, the RO continued the 30 percent initial rating in the July 2014 Statement of the Case (SOC) and the Veteran perfected his appeal. In February 2020, however, the Board found that the Veteran submitted his claim on February 15, 2012 and that the period on appeal was from February 14, 2011, one year prior to the date of receipt of the Veteran’s claim for an increased rating. Here, the Veteran was granted service connection for anxiety disorder NOS in August 2011. While the Veteran did not submit a notice of disagreement to the rating decision, new and material outpatient treatment records were received within a year of the rating decision in March 2012 and July 2012. If new and material evidence is received during an applicable appellate period following a RO decision (one year for a rating decision and 60 days for a statement of the case), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In light of the provisions of § 3.156(b) and the outpatient treatment records submitted within a year of the August 2011 rating decision, the Board finds that the appeal period is from October 17, 2010. In so finding, the Bord finds that the grant of a 50 percent rating for the Veteran’s unspecified trauma-and stressor-related disorder with TBI is effective October 17, 2010. The Board will next address the issue of whether a rating higher than 50 percent is warranted for the period from October 17, 2010 to December 2, 2013. The Veteran argues that his unspecified trauma-and stressor-related disorder with TBI warrants a rating higher than 50 percent prior to December 2, 2013. In relation to the Veteran’s claim, he was afforded a VA examination in January 2011. It was noted that the Veteran never married and had no children. He lived with his parents, and reported that he had a good relationship with his mother and a great relationship with his father and siblings. He reported having a supportive family and many close friends. He described his mood as irritable and anxious, and reported occasional feelings of sadness but he denied prolonged periods of dysphoric mood, anhedonia, disruption in appetite, low energy, feelings of hopelessness, and/or suicidal/homicidal intent, or plan. He denied uncontrollable, generalized worry, a history of manic symptoms/hallucinations/delusions, and/or obsessions and compulsions. He continued to function in his activities of daily life. He was not working or in school but he was engaged socially. Examination disclosed that the Veteran was casually dressed and appropriately groomed. Although the Veteran struggled to sit still, there was no evidence of gross psychomotor abnormality. He was cooperative and there did not appear to be evidence of gross symptom exaggeration or minimization. Mood was mostly serious with congruent affect. Cognitive functioning, to include memory, appeared intact, and thought processes were logical and linear. There was no evidence of hallucinations or delusions. He denied current, active suicidal and homicidal, intent, or plan. The Veteran’s symptoms were noted to include daily intrusive memories, avoidance, sleep problems, hypervigilance, fear, anxiety, and mild impairment in occupational functioning. The examiner expressed concerns about the Veteran’s ability to manage school given his level of distress and coping tactics. The examiner also noted that there was the possibility of symptom exaggeration, but overall, the profile was likely a valid indicator of the Veteran’s overall emotional adjustment and personality functioning. During the March 2011 VA examination, the Veteran reported depression and some anxiety. He stated that he was much more of a loner than before and that he was not sociable. It was noted, however, that he did not report difficulty going to the grocery store, out to dinner or the movies. He reported sleep difficulty but did not report any problems with orientation in familiar or unfamiliar surroundings. He also denied verbal or physical aggression, motivation, impulsivity and/or irritability. The Veteran was a student but he denied any difficulties with school at that time. In October 2013, the Veteran reported being depressed “3-4 per day a week.” It was noted that he felt irritable, and that he was unable to sit still and sleep more than 3-4 hours with medications. The Veteran described fleeting thoughts of suicide but he was adamant that he would never seriously want to hurt himself or his family. He denied anxiety attacks but noted having sweats, heart pounding and more isolation from family and friends. During this time, the Veteran identified racing thoughts, and it was noted that he worried about many things stating some were in his control and sometimes they were out of his control. He noted he felt irritable all the time, and that he bit his nails until they bled. He had a difficult time staying still, felt edgy and restless most of the time. The Veteran reported that he had a hard time focusing and studying, and unable to read school assignments. Based on the evidence presented, the Board finds that from October 17, 2010 to December 2, 2013 the criteria for a 70 percent rating for unspecified trauma-and stressor-related disorder with TBI were not met. To that end, during this period of time, occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood was not shown. Rather, while the Board is mindful that the Veteran reported irritability affecting his family relationships, avoidance preventing him from attending funerals, isolation and being distant from family and friends, the Board notes that the Veteran continued to show an ability to maintain relationships with his family and friends. During this period, the Veteran lived for a time with his parents, had a girlfriend, and he reported a great relationship with his father and siblings during his VA examination. He described having a supportive family and many close friends. He also reported that he participated in some social activities. Despite his irritability and isolating behaviors, the above evidence demonstrates that he could maintain some effective relationships during this time. The Board is mindful that the Veteran reported irritability and some angry outbursts during the appeal. It was noted, however, in July 2010 that he did not have any violent behaviors despite stressors. In December 2010, the Veteran stated that he had control over his temper and thoughts of avoiding conflict. He denied any fleeting violent thoughts. It was also noted that while the Veteran appeared anxious, he was logical and interacted well. To the extent that the Veteran exhibited symptoms of irritability and angry outbursts were reported, impaired impulse control (such as unprovoked irritability with periods of violence) was not shown and/or reported during this period of time. Furthermore, although the Veteran reported constant anxiety, depression, and memory problems during this time, the VA examinations, lay statements, and outpatient treatment records did not show symptoms of near- continuous panic or depression affecting the ability to function independently, appropriately and effectively. Rather, the examinations during this time disclosed that the Veteran’s grooming was good and his dress causal. His speech was generally normal, and his thought content was normal. His judgment and impulse control were shown to be good, and insight fair. Although he admitted to suicidal ideation during this period, such was shown to be without plan or intent. While this is an example for a 70 percent rating, the frequency, severity and duration of this particular symptom is not shown to have significant impact on his occupational and social functioning. Additionally, during the appeal period, the Veteran was unemployed but was attending school. The Veteran reported during this time that he was restless at school and felt anxious around exam time. He also reported that he felt stressed and pressured, and worried about failing. The Board also acknowledges the January 2011 VA examiner’s concerns about the Veteran’s ability to manage school given his level of distress and coping tactics. To the extent that difficulty in adapting to stressful circumstances in regard to school was shown during this time, the Board notes that the occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood was not shown so to meet the criteria for a 70 percent rating. (continued on the next page) In sum, from October 17, 2010 to December 2, 2013, the Veteran’s unspecified trauma-and stressor-related disorder with TBI symptoms were more characteristic of a disability picture that is contemplated by no more than a 50 percent rating. The Board finds that the Veteran has been competent and credible when reporting his symptoms during this time. The Board has considered the lay statements of record which discuss the Veteran’s functional limitations and his reports of irritability, anxiety, avoidance, distressing recollections, insomnia, sleep disturbances, and cognitive difficulties. The medical and lay evidence, however, establish that there was occupational and social impairment with reduced reliability and productivity. The manifestations, even when accepted as credible, did not establish occupational and social impairment with deficiencies in most areas. Neither the lay or credible medical evidence shows the Veteran’s symptoms had been persistent or of the level required for a 70 percent evaluation or higher. Accordingly, a 50 percent rating, but no higher, for unspecified trauma-and stressor-related disorder with TBI symptoms is warranted from October 17, 2010 to December 2, 2013. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S. Willie 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.