Citation Nr: 22019749 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 19-25 052 DATE: April 2, 2022 ORDER Entitlement to an initial 70 percent rating for other trauma and stressor related disorder is granted, subject to the laws and regulations governing the payment of monetary awards. FINDING OF FACT Throughout the period on appeal, the Veteran's other trauma and stressor related disorder caused occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a 70 percent rating, but not higher, for other trauma and stressor related disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655 (b) 4.1, 4.3, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to March 1969. The Veteran seeks a higher initial rating for his service-connected other trauma and stressor related disorder which has been rated as 10 percent disabling prior to August 2, 2018, and a 30 percent rating beginning August 2, 2018, under 38 C.F.R. § 4.130, Diagnostic Code 9411. Disability ratings 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 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 concludes that an initial 70 percent rating, but no higher, is warranted for the Veteran's other trauma and stressor related disorder. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of examination. It is the responsibility of the rating specialist to interpret reports of examinations in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. 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. 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. On February 2018 VA examination, other trauma and stressor related disorder was diagnosed. The examiner noted that during the examination, the Veteran reported current mental health concerns with thoughts of suicide, citing increasing difficulty, but knowing others and he indicated he was not seriously considering it. He denied having a plan, taking action, or being in imminent danger of self-harm. He reported concerns with aging, increasing cost of living, and his own deteriorating health. The Veteran's symptoms included disturbances of motivation and mood. The examiner opined that the Veteran's symptoms resulted in 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 controlled by medication. On behavioral observations, the examiner noted the Veteran arrived on time and was appropriately dressed and groomed. No remarkable cognitions or behaviors were observed. He was socially appropriate, but teared up as he discussed different points and concerns because he had not discussed his experiences in Vietnam for many years. He was pleasant and cooperative throughout the interview and answered questions without difficulty. He was engaged and focused on conversation and speech were within normal parameters for content, speed, volume and clarity. His cognitions were linear and logical with no remarkable features observed during the interview. He was oriented to time, date, and location. He was able to spell forward and backwards without impairment. He reported audio hallucinations with hearing his name called several times a week when no one is around, and reported that it had occurred for years and was increasing in frequency. He denied having panic attacks, or impaired impulse control. The examiner found he was capable of managing his own financial affairs. On May 2019 VA examination, the Veteran denied any mental health treatment due to a strong distrust of the VA. He reported having disruptive sleep. The Veteran's symptoms included disturbances of motivation and mood. The examiner opined that the symptoms resulted in occupational and social impairment due to mild or transient systems which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or: symptoms controlled by medication. On behavior observations the Veteran appeared to be oriented to time, place, and person. The examiner noted he was a man of medium build, dressed in casual attire with appropriate hygiene and grooming who appeared older than his stated age of 72. He demonstrated appropriate eye contact with the examiner. He was a fair historian due to short, fragmented answers and difficulty recalling dates and timeliness of events. His affect was irritable with restricted range. Tone was abrasive during the initial portion of the evaluation and calmed to a more neutral tone and volume towards the end of the appointment. He denied having current suicidal or homicidal ideas. There was no indication of psychotic process or hallucinations or delusions. The examiner found he was capable of managing his own financial affairs. In January 2020, the Veteran provided for the record a mental health systems checklist, dated July 2019. The Veteran reported symptoms of anger, chronic sleep problems, depression, flashbacks, heavy use of alcohol, isolation, memory loss, overly concerned with personal hygiene, problems with communication, problem at work, problems getting along with people, sense of helplessness, suicidal feelings/thoughts, and suspiciousness. On February 2020 VA examination, the Veteran reported he had been married for 38 years and had a good relationship with his wife. He has four sons, but he only has a good relationship with his youngest son. He reported having many acquaintances, but only one close friend. He reported meeting with a mental health provider a few times in the prior couple of years, but he had never wanted any treatment. His symptoms included chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The examiner opined that the symptoms resulted in occupational and social impairment due to mild or transient systems which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or: symptoms controlled by medication. On behavioral observations, the Veteran was cooperative. He presented with a restricted range of affect and his mood appeared detached. Speech and eye contact were normal. Thought process was logical, linear, and goal directed. Thought content was devoid of hallucinations, delusions, homicidal, or suicidal ideation. Insight and judgement were good. Memory appeared mostly normal, but he was vague about certain dates and time periods. The examiner found he was capable of managing his own financial affairs. Based on review of the record, the Board finds that entitlement to an initial 70 percent rating, but not higher, for other trauma and stressor related disorder is warranted. Throughout the period on appeal, the Veteran consistently expressed suicidal ideation which is contemplated by the 70 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). The Board finds the frequency and severity of the symptoms more closely approximate the criteria for a 70 percent rating, despite the February 2018, May 2019, and February 2019 VA examiners' characterization of the impact of the symptoms as being more indicative of lower ratings. Accordingly, throughout the entire period on appeal, the Veteran's symptoms and functional impairment revealed deficiencies in areas of work, school, family relations, thinking, and mood due to symptoms such as impaired impulse control, difficulty in adapting to stressful circumstances, neglect of personal appearance and hygiene, and the inability to maintain effective relationships. An evaluation higher than 70 percent is not warranted because the effect of the symptoms does not more closely approximate the disability picture contemplated by a 100 percent rating. 38 C.F.R. § 4.130, Code 9411. The evidence does not reflect that the Veteran's psychiatric symptoms resulted in total occupational and social impairment. The evidence does not show that he exhibited gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); memory loss for names of close relatives, own occupation, or own name due to his other trauma and stressor related disorder. Although the Veteran was noted to have recurring audio hallucinations at the February 2018 VA examination, none were noted on May 2019 or February 2020 VA examinations. Additionally, while the Veteran reported suicidal ideation throughout the period on appeals, VA examiners found that the Veteran was not a danger to himself or others and no suicidal ideation was noted on February 2020 VA examination, such that a persistent threat of self-harm was present. The evidence of record more closely contemplates the 70 percent rating criteria; 38 C.F.R. § 4.7 is not for application. In his February 2021 submission, the Veteran's attorney raised the issue of entitlement to an earlier effective date for the Veteran's PTSD. Review of the procedural documents of this Legacy case, to include the June 2019 Statement of the Case and May 2020 Supplemental Statement of the Case, do not reflect that the Veteran argued for an earlier effective date or that the effective date was on appeal. Further, the January 2019 Notice of Disagreement (VA Form 21-0958) specifically indicates the disagreement is with the evaluation and not the effective date of award. The August 2019 Substantive Appeal (VA Form 9) submitted in conjunction with the increased rating claim also does not specify any argument with respect to an earlier effective date, only increased ratings. Accordingly, the Board finds that any argument with respect to an effective date for PTSD is intended to argue for an earlier effective date for the 30 percent rating, or the later stage of the two-stage rating on appeal to the Board. To that end, the Board finds that the above award of a 70 percent rating, for the entire appeal period, renders this argument moot. In Rice v. Shinseki, 22 Vet. App. 447 (2009), that a claim for a total disability rating based on individual unemployability (TDIU) is part and parcel of an increased rating claim when raised by the Veteran or the record. In this case, while the decision above grants a 70 percent rating for PTSD, the record does not reflect that the Veteran is unemployable due to this, his sole service-connected disability. The record as a whole reflects that the Veteran is currently employed. Accordingly, a TDIU claim has not been raised, and no action under Rice is necessary. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eric Struening 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.