Citation Nr: 21027241 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-44 056 DATE: May 5, 2021 ORDER Entitlement to a disability rating in excess of 10 percent from July 25, 2013 until January 4, 2018 for unspecified trauma and stressor related disorder is denied. Entitlement to a disability rating in excess of 30 percent from January 4, 2018 until January 8, 2020 for unspecified trauma and stressor related disorder is denied. Entitlement to a disability rating in excess of 50 percent from January 8, 2020 for unspecified trauma and stressor related disorder is denied. Entitlement to a total disability rating based upon individual employability (TDIU) is denied. FINDINGS OF FACT 1. From July 25, 2013 until January 4, 2018, manifestations of the Veteran's unspecified trauma and stressor related disorder did not more closely approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. From January 4, 2018 until January 8, 2020, the manifestations of the Veteran's unspecified trauma and stressor related disorder did not more closely approximate occupational and social impairment with reduced reliability and productivity. 3. From January 8, 2020, the manifestations of the Veteran's unspecified trauma and stressor related disorder did not more closely approximate occupational and social impairment with deficiencies in most areas. 4. The Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for unspecified trauma and stressor related disorder have not been met for the period from July 25, 2013 until January 4, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413. 2. The criteria for a disability rating in excess of 30 percent for unspecified trauma and stressor related disorder have not been met for the period from January 4, 2018 until January 8, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413. 3. The criteria for a disability rating in excess of 50 percent for unspecified trauma and stressor related disorder have not been met from January 8, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9423. 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1967 until August 1969. In July 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. However, a transcript of that hearing could not be produced due to audio malfunctions throughout the Veteran's testimony. In November 2020, the Board notified the Veteran of this issue and offered the Veteran an opportunity to testify at another hearing. The Veteran did not respond to the Board correspondence; thus, as noted in the November 2020 letter, the Board assumes he does not want another hearing. In August 2019, the Board remanded this appeal for further development. The Board finds there has been substantial compliance with its prior remand directives and will proceed to adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a disability rating in excess of 10 percent from July 25, 2013 until January 4, 2018 for unspecified trauma and stressor related disorder 2. Entitlement to a disability rating in excess of 30 percent from January 4, 2018 until January 8, 2020 for unspecified trauma and stressor related disorder 3. Entitlement to a disability rating in excess of 50 percent from January 8, 2020 for unspecified trauma and stressor related disorder The Veteran asserts that his acquired psychiatric disorder has worsened such that an increased evaluation of disability is now warranted. Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In an August 2014 rating decision, the agency of original jurisdiction (AOJ) granted service connection and assigned an initial 10 percent rating for anxiety disorder not otherwise specified, effective July 25, 2013. In an October 2018 rating decision, the AOJ increased the rating to 30 percent disabling effective January 4, 2018, the date of a VA examination. Subsequent to the Board remand, the AOJ increased the rating to 50 percent effective January 8, 2020, the date of a VA examination. See April 2020 rating decision. The question before the Board is whether the Veteran is entitled to a higher evaluation at any point during the appeal period. A 10 percent rating is assigned when the psychiatric condition produces 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 are controlled by continuous medication. A 30 percent rating is assigned when the psychiatric condition produces 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). A 50 percent disability rating is assigned when the psychiatric condition produces 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 rating is assigned when the psychiatric condition produces 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran' s symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. VA mental health treatment records from October 2013 until April 2020 were reviewed and considered by the Board. The Veteran receives treatment for PTSD, depression, and alcohol dependence from VA. It is noted in those records that the Veteran lost his job as a paramedic in August 2011 due to alcohol use and was admitted for related treatment in April 2012. An October 2013 treatment note states that the Veteran experiences nightmares approximately once per week, had a flashback recently, endorsed irritability and temper "continue up and down but are overall under control," endorsed sleeping approximately 6 hours per night, and that depression is "not as bad and is about the same." A November 2013 treatment note recorded symptoms of "some nightmares" and mild irritability. The Veteran was provided a VA Initial PTSD Disability Benefits Questionnaire (DBQ) in June 2014. The examiner diagnosed the Veteran with anxiety disorder, NOS under DSM-IV and unspecified trauma and stressor-related disorder under DSM-5 criteria explaining that the DSM-5 does not have the option to diagnose sub-syndromal PTSD as an anxiety disorder. The examiner also diagnosed alcohol use disorder, in sustained remission. The examiner stated that all current impairment was related to the Veteran's trauma/stressor disorder. The examiner identified symptoms including anxiety, getting "depressed over life," periods of irritability (partially attributed to hearing difficulties), sleep impairment including little sleep (4 hours per night) and excessive sleep (up to 14 hours), weekly dreams of "fighting," waking up crying and screaming, startling at noises, and feeling uneasy in crowds. The Veteran was taking sertraline and trazodone for his symptoms. The examiner characterized the related social and occupational impairment as "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." A March 2015 VA mental health treatment note shows that the Veteran reported that his mental health is "pretty good" with "more good days than bad days" and bad days characterized by occasional "NMs" or intrusive memories. In June 2015 the Veteran requested less frequent mental health sessions due to mental health stability and the following appointment was scheduled six months in the future, with the intention of discussing termination of treatment. In April 2016, the Veteran reported "not really having nightmares" but some "weird dreams," irritability and temper, crowd avoidance, sleeping six to nine hours per night, and his depression is "about the same." On his July 2016 notice of disagreement, the Veteran stated that he is unable to hold a job for long periods of time due to treatment for substance abuse and overdose "due to PTSD." On a September 2016 VA Form 9, the Veteran stated that he experiences panic attacks more than once per week, has difficulty maintaining effective work relationships citing multiple times he was terminated from positions due to alcohol addiction and treatment as well as for unspecified reasons, has experienced three divorces and "several separations from my present wife," severe depressed mood, and chronic sleep impairment including night terrors. The Veteran was afforded a VA mental disorders in January 2018. The examiner diagnosed unspecified trauma and stressor related disorder. The examiner noted the following symptoms: depressed mood, anxiety, suspiciousness, flattened affect. Additionally, the examiner noted that the Veteran reported hypervigilance, startle reactions, and irritability on a regular basis and that the other symptoms were "much more sporadic." The examiner said the Veteran was oriented for person, place and time and showed normal form and logical progress of thought. He denied ideas of reference, delusions, auditory and visual hallucinations; judgement and insight were fair. The examiner characterized the related occupational and social impairment as "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation." A July 2018 VA mental health treatment note shows that the Veteran asked for more help with anxiety. At a July 2019 Board hearing, the Veteran testified that his symptoms had worsened since the January 2018 VA examination. Unfortunately, the details of the Veteran's testimony are not known as a transcript of that hearing could not be produced. The Veteran was afforded a third VA examination in January 2020. That examiner diagnosed the Veteran with unspecified trauma and stressor related disorder and alcohol use disorder in sustained remission. All reported symptoms were attributed to the Veteran's unspecified trauma and stressor related disorder. The examiner noted the following symptoms: depressed mood, anxiety, chronic sleep impairment, impairment of short and long-term memory, and difficulty establishing and maintaining effective work and social relationships. The examiner also noted other symptoms including irritability, emotional detachment, and avoidance. The examiner characterized the related impairment as "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation." An April 2020 VA mental health telephone encounter notes states that the Veteran endorsed his nightmares are "better," his irritability and temper are "better," sleep is "pretty good except for the pain," and depression is "a lot better." The Board finds that a rating in excess of 10 percent for the period July 25, 2013 until January 4, 2018 is not warranted; a rating in excess of 30 percent is not warranted for the time period January 4, 2018 until January 8, 2020, and; a rating is excess of 50 percent from January 8, 2020 is not warranted. From July 25, 2013 until January 4, 2018, the date of a VA examination, a 30 percent rating is not warranted because the related occupational and social impairment does not more closely approximate the criteria required for that rating. 38 C.F.R. § 4.7. There is no indication in the record that, from July 25, 2013 until January 4, 2018, the Veteran's symptoms resulted in a decrease in work efficiency or periods when he was unable to complete occupational tasks. Although the Veteran reported difficulty maintaining work relationships, he attributed the difficulty to alcohol dependance and substance abuse, which is not a condition for which service connection has been established. While the Veteran reported depression, anxiety, and sleep impairment during this time period, the VA examiner found that the effect of those symptoms resulted in mild impairment as contemplated by a 10 percent disability rating. There is no evidence in the record of suicidal ideation. Beginning January 4, 2018, the Veteran's psychiatric disability is evaluated as 30 percent disabling. The Board finds that for period from January 4, 2018 through January 8, 2020, the date of a VA examination, the criteria for an increased, 50 percent rating, are not met or more closely approximated. The January 2018 VA examiner noted symptoms of depressed mood, anxiety, suspiciousness and flattened affect. The examiner also commented that the Veteran was oriented, and had normal thought processes. There is no evidence during this time that the Veteran experienced reduced reliability and productivity due to the identified symptoms. Instead, the January 2018 examiner characterized the impairment the Veteran endured as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. There was no evidence during this time period of suicidal ideation. From January 8, 2020, a rating in excess of 50 percent is not warranted as the criteria for a 70 percent rating are not met or more closely approximated. The examiner identified symptoms of depressed mood, anxiety, chronic sleep impairment, impairment of short and long-term memory difficulty establishing and maintaining effective work relationships. There was no evidence of suicidal ideation or other symptoms that caused impairment in most areas of the Veteran's life. While the Veteran had difficulty establishing and maintaining effective relationships, the examiner did not identify an inability to do so. There is no evidence that the Veteran has deficiencies in most areas such as work, family relations, judgment, thinking, or mood due to his service-connected acquired psychiatric disorder. The Veteran has been married to his current spouse for several years and has a relationship with his children. There is no evidence of suicidal ideation, speech difficulties, obsessional rituals, continuous panic or depression affecting the ability to function independently. As the preponderance of the evidence is against the claim, increased ratings are not warranted for any period on appeal. 4. Entitlement to TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided, that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where a Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. After the remand, service connection was granted and an initial 100 percent rating assigned for coronary artery disease with congestive heart failure, effective January 22, 2020. See February 2020 rating decision. The claim for TDIU is part of the increased rating claim on appeal that has been pending since July 2013. Rice v. Shinseki, 22 Vet. App. 447 (2009). The question before the Board is whether TDIU is warranted prior to January 2020. During that time period, the Veteran's only service-connected disability is unspecified trauma and stressor related disorder. His combined disability rating is 10 percent from July 2013, 30 percent from January 2018 and 50 percent from January 8, 2020. Therefore the schedular threshold for TDIU are not met. 38 C.F.R. § 4.16 (a). Notwithstanding the circumstances of not meeting the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a), all veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. Indeed, a total rating based on individual unemployability may be assigned in the case of a Veteran who fails to meet the percentage requirements but who is unemployable solely by reason of service-connected disability on an extraschedular basis. 38 C.F.R. § 4.16 (b). In order to meet this standard, the record must show some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The remaining question before the Board, then, is whether the Veteran is unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disabilities and thus entitled to consideration of a TDIU rating on an extraschedular basis under the provisions of 38 C.F.R. § 4.16 (b). The Board finds that he is not unemployable as a result of his service-connected psychiatric disability and consideration of 38 C.F.R. § 4.16 (b) is not warranted. The Veteran has stated that he is unable to work due to his unspecified trauma and stressor related disorder. See August 2019 VA Form 21-8940, TDIU Application. He reported completing two years of college, a work history as a paramedic, and that he became too disabled to work as of August 2013. It appears that difficulties with maintaining employment described by the Veteran, including on the September 2016 VA Form 9, appear to be related to his substance abuse and not due to his service-connected disability. There is no indication that the impairment of the Veteran caused by his service-connected acquired psychiatric disorder precludes him from obtaining and maintaining a substantially gainful occupation. VA examinations conducted over the course of the appeal described the Veteran's symptoms and related occupational impairment, but at worst, characterized that impairment as resulting in reduced reliability and productivity. See January 2020 VA examination. Indeed, the January 2020 VA examiner opined that, "[s]olely from a mental health point of view without consideration of age and physical health," the Veteran's diagnosed mental illness "does not fully prevent the ability to do physical and sedentary work." The preponderance of the evidence is against entitlement to TDIU, and the claim is, therefore, denied. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.