Citation Nr: 21031439 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 15-38 815 DATE: May 21, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for other specified trauma and stressor related disorder is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for other specified trauma and stressor related 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2003 to July 2004, July 2005 to June 2006, and February 2008 to August 2008. A November 2013 rating decision granted entitlement to service connection for "anxiety NOD (claimed as [posttraumatic stress disorder (PTSD)] and depression with sleep disturbances)" and assigned a noncompensable disability rating effective March 12, 2013. A September 2015 rating decision assigned a 30 percent disability rating from March 12, 2013 for "anxiety (not otherwise specified (claimed as [PTSD] and depression with sleep disturbances)." An August 2017 rating decision recharacterized the Veteran's service-connected disability as other specified trauma and stressor related disorder, formerly anxiety disorder not otherwise specified (claimed as PTSD and depression with sleep disturbances). The previously assigned 30 percent disability rating was continued. This case was previously remanded in March 2019 for the Veteran to undergo a VA examination. The Board finds substantial compliance with its remand instructions has occurred. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an initial rating in excess of 30 percent for other specified trauma and stressor related disorder 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he is entitled to an initial rating higher than 30 percent. The Veteran's service connection condition is rated under Diagnostic Code 9413 which utilize General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under that Formula, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although found to be generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as a depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders, Diagnostic Code 9413. Important for this case, a 50 percent rating is assigned 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 (e.g., 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 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); and the inability to establish and maintain effective relationships. 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. As the United States Court of Appeals for the Federal Circuit recently explained, evaluation under 38 C.F.R. § 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, 11617 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18 ; 38 C.F.R. § 4.130, Diagnostic Code 9413. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "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." 38 C.F.R. § 4.126 (a). With the above criteria in mind, the Board notes the VA treatment records show complaints of nightmares, hypervigilance, negative thinking, and feelings of panic. The Veteran was casually dressed and appeared to be well-groomed. His eye contact was direct and appropriate. He was oriented to all four spheres. The Veteran's mood was good, and his affect was appropriate. The Veteran did not demonstrate any impairment in his thought processes or communication. His speech was clear, fluent, and coherent. His movements and posture were within normal limits. The Veteran indicated he had no suicidal or homicidal ideations. On VA examination in October 2019 and March 2017, the VA examiners noted occupational and social impairment due to mild transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The VA examiners also noted the Veteran exhibited symptoms of anxiety and chronic sleep impairment. Having reviewed the record, the Board finds that the frequency, duration, and severity of the Veteran's symptoms are consistent with a 30 percent rating throughout the period on appeal. The Board has also considered the additional symptoms reported by the Veteran of nightmares, hypervigilance, negative thinking, and feelings of panic and find they more nearly approximate the severity of the symptoms listed in the 30 percent rating criteria. Additionally, the Board finds that the Veteran's disability picture does not warrant a 50 percent rating. The record does not show the Veteran exhibited any symptoms such as (for example): 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; and difficulty in establishing and maintaining effective work and social relationships. This finding does not suggest that the Veteran did not have problems during this time period. If the Veteran did not have problems, there would be no basis for the 30% finding. The only question is the degree based on a detailed review of the evidence. The Veteran clearly has problems. In this regard, a 30% disability will cause the Veteran many issues, such as the ones he has cited in this case. The Board concludes that the medical findings on examination and treatment notes are of greater probative value than the Veteran's allegations regarding the severity of his psychiatric disability. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an initial rating in excess of 30 percent. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.