Citation Nr: 21041027 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-62 995 DATE: July 7, 2021 ORDER Entitlement to a 50 percent evaluation, but no higher, for service-connected other specified trauma-related disorder from January 7, 2015, is granted, subject to the applicable regulations concerning the payment of monetary benefits. FINDINGS OF FACT 1. The most probative evidence reflects that the Veteran's service-connected other specified trauma-related disorder is manifested by subjective complaints of anxiety, nightmares/chronic sleep impairment, concentration difficulties, panic attacks, disturbances of motivation and mood, and depressed mood, which are productive of occupational and social impairment with reduced reliability and productivity. 2. The most probative evidence does not reflect that the symptoms associated with the Veteran's service-connected other specified trauma-related disorder result in occupational and social impairment with deficiencies in most areas and/or total occupational and social impairment. CONCLUSION OF LAW The criteria for a 50 percent evaluation, but no higher, for service-connected other specified trauma-related disorder have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.159, 4.130, Diagnostic Code (DC) 9410 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from December 1968 to December 1970 and from March 1976 to July 1976, to include service in the Republic of Vietnam. He is in receipt of a Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) from a March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. The Veteran's appeal was previously before the Board in January 2019, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. 1. Entitlement to an evaluation in excess of 30 percent for service-connected other specified trauma-related disorder Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's service-connected other specified trauma-related disorder is currently rated at 30 percent under DC 9410 of the General Rating Formula for Mental Disorders (General Rating 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 generally functioning satisfactorily with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, and mild memory loss (i.e. forgetting names, directions, or recent events). A 50 percent rating is warranted under the General Rating Formula for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. A 70 percent disability evaluation is warranted when there is 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM IV, AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994). The amendments replace those references with references to the recently updated DSM 5, and examinations conducted pursuant to the DSM 5 do not include GAF scores. As the Veteran's claim for benefits was certified after August 2014, the DSM 5 criteria will be utilized in the analysis set forth below. Analysis The Veteran is seeking an evaluation in excess of 30 percent for his service-connected other specified trauma-related disorder. His claim for an increased evaluation was received by VA on January 7, 2016, which begins the period of appellate review now before the Board (plus consideration of the one-year look back period prior to the filing of that claim). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). After careful consideration and for the reasons expressed below, the Board finds that the most probative evidence reflects that the Veteran's psychiatric symptoms worsened during the year prior to VA's receipt of his January 2016 claim, and the manifestations of such most closely approximate the criteria for a 50 percent evaluation, but no higher, for the entirety of the appeal period for consideration (from January 7, 2015, to the present). Initially, the Veteran was diagnosed with (and service-connected for) anxiety disorder due to his sub-threshold PTSD symptoms in November 2013. In the March 2016 VA examination report the examiner noted that since the DSM-V was published, the Veteran's sub-threshold PTSD symptoms are now diagnosed as other specified trauma and stressor related disorder and that it did not represent any change in diagnosis. In addition, the VA treatment records noted diagnoses of adjustment disorder and history of treatment for PTSD. As such, all symptoms will be discussed. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Turning to the evidence, a March 2015 VA treatment record noted that the Veteran denied suicidal and homicidal ideation. He was currently living with his niece (for the past 8 years). It was noted that he had never been married and had no children. He was reportedly dating someone for past 6 months. For the prior 13 years, he worked as a janitor at a university. He endorsed nightmares, avoidance, negative emotional state, decreased interest or participation in activities, hypervigilance, and sleep disturbance. On examination there were no hallucinations or delusions. His affect was pleasant, and his judgment and insight were deemed fair. A September 2015 VA treatment record indicated that the Veteran did volunteer work with senior citizens. His hobbies included reading, bowling and shooting pool. On examination his mood was neutral and his affect was congruent and appropriate. There was no evidence of psychosis or thought disorder. He was alert, fully oriented, engaged, polite and generally cooperative. A March 2016 VA examination report demonstrated that although the Veteran continued to exhibit some trauma related symptoms (nightmares, sleep disturbance, concentration difficulties and mild intrusive thoughts), he did not meet the full criteria for a PTSD diagnosis. The examiner opined that the Veteran met the diagnosis of other specified trauma-related disorder and displayed symptoms consistent with 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. It was noted that the Veteran currently lived (and has lived for the past three years) with his niece and nephew. He described their relationship as "very excellent." He stated that he has a few friends with whom he is close. He reported that he spends time with his friends once or twice a month, often shooting pool or playing chess. He also reported enjoying reading. He stated that he retired from being a janitor because he was "old enough" and "can't work forever." He indicated that when he worked he had trouble concentrating on job instructions because periodic intrusive memories would make it difficult for him to focus. It was noted that he was currently prescribed Sertraline and Trazodone. He reported that his symptoms recently became worse, mostly in terms of sleep impairment. He stated that his daytime mood was not good and was distraught about his poor sleep. He also reported mild disruption in level of interest and motivation. He continued to report decreased concentration. He denied suicidal and homicidal ideation. He also denied any history of alcohol or drug use. He endorsed depressed mood, anxiety, sleep impairment, disturbances of motivation and mood, lack of interest and motivation, and intermittent physiological anxiety symptoms (twice in past year). The examiner indicated that despite the Veteran's mild psychological symptoms, he maintains meaningful interpersonal relationships and continues to engage in enjoyable activities fairly regularly. His symptoms do impair his ability to engage with tasks and activities, and his experience of intermittent nightmares and sleep difficulty clearly leads to a good deal of worry and sadness. This in turn reduces his quality of life. An April 2018 VA treatment record noted that the Veteran was well-groomed, cooperative and made good eye contact. His speech was regular in rate and rhythm and his flow was linear. Thought content was unremarkable with no suicidal/homicidal ideation or hallucinations. His remote and recent memory were intact. Abstract reasoning was normal and insight and judgment were fair. Another April 2018 VA treatment record indicated that the Veteran spoke jovially about his family. He was noted to work in construction a couple of days a week. He also reported going to the library, going to movies, and enjoying playing pool. He reported a lot of mental relaxation with pool and bowling. He also reported going to a restaurant recently for his sister's birthday party. A June 2019 mental status examination reflected that the Veteran was dressed casually. He was cooperative, his speech was normal, and his eye contact was appropriate. His mood was good, and his affect was "congruent/euthymic." Thought processes were linear and logical. He denied suicidal and homicidal ideation. There was no evidence of delusional content/hallucinations. His insight and judgment were deemed good. A November 2019 VA examination report noted that the Veteran's other specified trauma and stressor related disorder resulted in 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. It was noted that he was single and living with his niece. He reported spending his free time volunteering. Symptoms were noted to include depressed mood, anxiety, chronic sleep impairment, suspiciousness, panic attacks occurring weekly or less often, and disturbances of motivation and mood. On examination he was oriented, polite, and casually dressed. An April 2020 VA treatment record noted that his mood was "hanging in there." He indicated that medication has been helpful with stress. He recently lost a family member. He denied suicidal/homicidal ideation, hallucinations and delusions. He reported that therapy was helpful and he was getting better. Mental status examination revealed that he was cooperative and engaged. His speech was normal and his mood was stressed. His affect was congruent and euthymic. His thought processes were linear and logical. He denied suicidal/homicidal ideation and hallucinations. There was no evidence of delusional content, paranoid ideation, thought blocking/insertion/withdrawal, or internal preoccupation. Insight and judgment were noted to be good. A May 2020 VA individual psychotherapy session reflected that the Veteran was fully oriented. His speech was normal, logical, and coherent. There were no overt signs of a though disorder. His mood was euthymic. His affect was stable; he was cooperative and engaged. After a review of the record, the Board concludes that the symptoms associated with the Veteran's service-connected other specified trauma-related disorder are productive of functional impairment most closely approximating the criteria for a 50 percent evaluation, but no higher. In this regard, the medical evidence reflected that he complained of, and/or manifested symptoms such as depressed mood, anxiety, suspiciousness, panic attacks, concentration difficulty, disturbances of motivation and mood, and sleep impairment. Nonetheless, despite the symptoms noted above, the medical evidence also reflects that he was generally functioning satisfactorily throughout the evaluation period. For example, all of the medical evidence reflects that he was alert and oriented, he exercised fair or good judgment, and insight, and his thoughts and speech were clear. The medical and other evidence of record reflects that his family relationships were good, he had friends, and he had a fairly active social life. As such, the evidence shows moderate social impairment. In sum, the Board finds that the evidence of record dated from January 7, 2015, to the present, reflects that the Veteran experienced moderate psychiatric symptoms, resulting in occupational and social impairment with reduced reliability and productivity. Here there is positive evidence in support of the claim and negative evidence against it. Given this, the Board finds that the evidence is in a state of "equipoise." As such, affording the Veteran the benefit of the doubt, the Board concludes that the most probative evidence concerning the severity and functional impairment resulting from the Veteran's other specified trauma-related disorder symptoms most nearly approximates the criteria for a 50 percent evaluation. Accordingly, to this extent, the benefit sought on appeal is granted. In light of above, the question before the Board is whether an evaluation in excess of 50 percent is warranted for the Veteran's service-connected other specified trauma-related disorder throughout the pendency of the appeal. To this point, the medical evidence shows that the Veteran denied having severe psychiatric symptoms, such as suicidal or homicidal ideation, hallucinations or delusions, and he had no history of violence or aggressive impulse control problems. At no time during the evaluation period did the other specified trauma-related disorder disability picture reflect occupational and social impairment with deficiencies in most areas, or total social and occupational impairment, due to any of his psychiatric symptoms or any symptoms like or similar to those supporting a higher rating. Therefore, other specified trauma-related disorder most nearly approximated a 50 percent rating. The Board has considered the Veteran's lay statements that his disability is worse than the previously-assigned 30 percent evaluation, and these statements have served as part of the basis for the Board's partial allowance. Finally, the appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Redman, 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.