Citation Nr: 21027160 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 20-15 088 DATE: May 4, 2021 ORDER Entitlement to an initial rating of 30 percent, but not higher, for nightmare disorder with alcohol use disorder, depression, and anxiety is granted. FINDING OF FACT The severity, frequency, and duration of the Veteran's symptoms more closely approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 30 percent, but not higher, for nightmare disorder with alcohol use disorder, depression, and anxiety have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Board acknowledges that the AOJ certified two additional issues (entitlement to service connection for depression and for anxiety) that the Board has subsumed within the initial increased rating claim. This is appropriate because the Veteran had not demonstrated that he has the medical expertise to diagnose his particular condition and should not be limited by the conditions as listed in his claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran has reported experiencing anxiety (March 2020 substantive appeal) and a November 2018 VA examination documented "negative mood" associated with the Veteran's diagnosed nightmare disorder. The examiner did not diagnose additional disability entities, but effectively associated symptoms of anxiety and depression with the service-connected nightmare disorder. Therefore, the Veteran's psychiatric conditions have VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. The AOJ associated the Veteran's service records as well as VAMC and private treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. VA provided an appropriate and adequate VA examination. The Veteran argued in his February 2019 notice of disagreement and March 2020 substantive appeal that the VA examination was insufficient because the VA examiner failed to ask about the Veteran's experience in Vietnam and focused exclusively on the Veteran's alcohol use disorder. Failure to discuss the Veteran's experiences in Vietnam does not render the VA examination insufficient because the Veteran's service in Vietnam was well-documented and the VA examination noted his in-service stressor. Moreover, because the AOJ granted service connection, the focus and significance of the VA examination is its description of the Veteran's symptoms. Review of the November 2018 VA examination demonstrates that the examiner discussed, recorded, and considered more than just the Veteran's alcohol use disorder. For these reasons, VA has satisfied its duty to assist with the procurement of relevant records, including a sufficient VA examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran contends that a compensable rating is warranted for his nightmare disorder with alcohol use disorder, depression, and anxiety (hereinafter "nightmare disorder"). Importantly, in light of the above determination that the service-connected condition includes all psychiatric symptoms, all such must be considered in assigning the evaluation. Under the General Formula for Mental Disorders, 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). The Board concludes that the Veteran's symptoms most closely approximate the symptoms associated with a 30 percent rating, and resulted in a level of impairment that most closely approximates the level of impairment associated with a 30 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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. VA medical center (VAMC) records, private treatment records, a November 2018 VA examination, and the Veteran's lay statements show that the Veteran's nightmare disorder was manifested by symptoms associated with a 30 percent rating (anxiety, chronic sleep impairment, and mild memory loss), and a symptom associated with a 50 percent rating (disturbances of motivation). He also had symptoms that are not listed with a specific rating, such as "nightmares 4-5 times a week" (November 2018 VA examination), "negative mood the next day after a nightmare" (November 2018 VA examination), decrease in memory, feelings of detachment or estrangement from others, avoidance of public places, and "drink[ing] to forget" (March 2020 substantive appeal). 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. For memory loss, the Board finds that the decrease in memory cited by the VA examination more nearly approximates a "mild," 30 percent rating because private primary care records consistently listed the Veteran's immediate, recent, and remote memory as being "intact" from January 2017 to August 2018. As for depression and anxiety, although the Veteran described his anxiety as "severe" in the March 2020 substantive appeal and the VA examination noted a "negative mood . . . after a nightmare," January 2017 through July 2018 private cardiology records regularly documented that he was "Negative for suicidal tendencies, insomnia, anxiety, depression, changes in personality and emotional problems." Likewise, the January 2017 to August 2018 private primary care records did not reference anxiety or depression, and the Veteran denied depressive symptoms in an April 2019 VAMC primary care record. Regarding feelings of detachment or estrangement from others and avoidance of public places, the VA examination noted that the Veteran had been divorced twice and was not dating anyone. He reported socializing "with few, close friends and family," stated that "he enjoy[ed] being a loner," and "denied any difficulties due to 'loner' lifestyle." Because the Veteran maintained some personal relationships and enjoyed solitude, this element most closely approximates a 30 percent rating. As for "drink[ing] to forget," the VA examination noted that "For the past several years, [the Veteran] drinks a 6 pack a week." The VA examiner described a "medium to light" period of alcohol intake as "6-12 beers a day." One six pack per week thus appears to qualify as light drinking and would not merit a rating greater than 30 percent. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 30 percent rating. The VA examination found no interference with the Veteran's occupational and social functioning. The Veteran has not reported occupational impairments associated with his nightmare disorder and his capacity for social interaction, and his satisfaction with it, was discussed above. While the Veteran did experience decreased motivation, which is contemplated by a 50 percent rating, the evidence overall does not demonstrate the level of impairment associated with a 50 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 30 percent rating. In short, the preponderance of the evidence demonstrates that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 30 percent rating, but not higher. Accordingly, the Board finds that a 30 percent rating is warranted for nightmare disorder. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Ripplinger, 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.