Citation Nr: A25035227 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240423-434604 DATE: April 16, 2025 ORDER An initial rating in excess of 50 percent prior to April 13, 2023 and in excess of 70 percent thereafter for trauma and stress related disorder, anxiety disorder, and insomnia disorder is denied. REMANDED 1. An initial compensable rating for right foot idiopathic peripheral neuropathy. 2. An initial compensable rating for left foot idiopathic peripheral neuropathy. ? FINDINGS OF FACT 1. Prior to April 13, 2023, the Veteran's trauma and stress related disorder, anxiety disorder, and insomnia disorder resulted in occupational and social impairment with reduced reliability and productivity, but not deficiencies in most areas or total impairment. 2. Since April 13, 2023, the Veteran's trauma and stress related disorder, anxiety disorder, and insomnia disorder result in occupational and social impairment with deficiencies in most areas, but not total impairment CONCLUSIONS OF LAW 1. Prior to April 13, 2023, the criteria for an initial rating in excess of 50 percent for trauma and stress related disorder, anxiety disorder, and insomnia disorder were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.130, Diagnostic Code (DC) 9410. 2. Since April 13, 2023, the criteria for a rating in excess of 70 percent for trauma and stress related disorder, anxiety disorder, and insomnia disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, DC 9410. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1996 to August 2009. The case is on appeal from July 2023 and October 2023 rating decisions. In the April 2024 notice of disagreement (NOD) on appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the July 2023 and October 2023 rating decisions on appeal. 38 C.F.R. § 20.301. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial rating in excess of 50 percent prior to April 13, 2023 and in excess of 70 percent thereafter for trauma and stress related disorder, anxiety disorder, and insomnia disorder. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. Under 38 C.F.R. § 4.130, PTSD is rated pursuant to the General Rating Formula for Mental Disorders. Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. Evaluations will be assigned based on all 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 the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. A 30 percent rating is assigned 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 (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). 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. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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 an inability to establish and maintain effective relationships. A 100 percent evaluation is warranted 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 close relatives, own occupation, or own name. An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000). Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran is seeking higher ratings for the service-connected psychiatric disabilities. He was afforded an examination for this claim in July 2016. The Veteran reported being married since 1999 and having a satisfactory home life with his wife and daughter. He also reported working his job for three years, getting along with his coworkers, and performing his duties satisfactorily. He reported losing his temper three to four times per week at home, avoiding crowds and socializing, mild memory problems, and sleep impairment. The examiner reported that the Veteran was groomed and properly attired. The examiner also reported that his insight and judgment are intact and his flow of thought is logical, linear, tight, and goal-directed. The examiner denied the presence of psychosis, suicidal ideation, and risk of imminent suicide. The examiner found that the Veteran experiences psychiatric symptoms of anxiety, panic attacks that occur weekly or less often, mild memory loss, and disturbances of motivation and mood. The examiner concluded that the Veteran's psychiatric disabilities result 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. The Veteran's file does not include psychiatric treatment records. His VA treatment records include a message he sent to a primary care provider in May 2020. The Veteran reported being on probation at work due to sleeping on the job. The Veteran attributed this employment issue to narcolepsy. Thereafter, a November 2021 treatment record notes that the Veteran had nose surgery that had resolved his narcolepsy. On April 21, 2023, the Veteran submitted a claim for a higher initial psychiatric disability rating and a VA psychiatric disability benefits questionnaire (DBQ) completed by a private psychiatrist. The psychiatrist reported interviewing the Veteran and reviewing his medical records, lay statements, and claims file. The psychiatrist noted that he does not treat the Veteran. The psychiatrist reported that the Veteran was oriented with judgment grossly intact, adequate memory and insight, and above average intellectual functioning. The psychiatrist reported the Veteran has problems with trust, closeness, communication, decision-making, and problem-solving. The psychiatrist also reported that he has occasionally felt disconnected from his wife. The examiner further reported social withdrawal, mood liability, passive-aggressive behavior, and fatigue from insomnia. The psychiatrist found that the Veteran experiences psychiatric symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, suicidal ideation, inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and difficulty in establishing and maintaining effective work and social relationships. The psychiatrist concluded that a 70 percent rating is warranted for the psychiatric disabilities due to the nature and severity of his current symptoms which result in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The psychiatrist also found that the Veteran's symptoms have worsened since the onset of these disabilities. In an April 2023 statement, the Veteran's representative claimed that the private psychiatrist reported the Veteran has experienced symptoms of grossly inappropriate behavior and intermittent inability to perform activities of daily living. The representative also claimed that the private psychiatrist assessment found that the reported symptoms were present since the filing of the claim despite the psychiatrist consistently indicating the reported findings applied to the Veteran's current level of impairment and reporting that the condition had worsened. After engaging in a holistic analysis assessing the severity, frequency and duration of the signs and symptoms of the Veteran's psychiatric disabilities, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples and when looking at the effects determining the impairment level, the Board finds that an initial rating in excess of 50 percent prior to April 13, 2023 and in excess of 70 percent thereafter is not warranted. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013); Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Mauerhan v. Principi, 16 Vet. App. 436 442 (2002). During the July 2016 VA examination, the Veteran indicated that he had satisfactory relationships with both his family and coworkers. He also reported performing his job satisfactorily. The VA examiner found that the Veteran had intact insight and judgment, logical, linear, tight, and goal-directed thought, and denied the presence of psychosis, suicidal ideation, and risk of imminent suicide. The examiner did not report any symptoms indicative of a 70 percent rating or 100 percent rating. Furthermore, the examiner found that the severity of the Veteran's psychiatric symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks, which indicates functional impairment supportive of a 10 percent rating rather than a rating in excess of 50 percent. Prior to April 13, 2023, the Veteran did not claim and there are no lay statements or medical records indicative of a rating in excess of 50 percent. While the Veteran reported sleeping on his job in May 2020, he reported this was due to narcolepsy rather than sleep impairment from insomnia. He further reported that the narcolepsy was resolved by treatment in November 2021. To the extent that the Veteran's sleep impairment worsened after the July 2016 VA examination, he was the assigned 50 percent rating includes compensation for chronic sleep impairment due to psychiatric disability. See 38 C.F.R. § 4.130. In addition, as the Veteran is separately service-connected for sleep apnea rated 50 percent disabling throughout this period, granting an increased psychiatric rating solely due to symptoms of sleep impairment would be improper pyramiding. See 38 C.F.R. § 4.14. The Board notes that the Veteran's representative claimed that a higher rating prior to April 13, 2023 is warranted based on the private psychiatrist's report. However, throughout the report, the psychiatrist reported the Veteran's current symptoms and impairment level. The psychiatrist also expressly stated that the condition had worsened and made no finding as to a specific date this occurred. In addition, the psychiatrist had never met the Veteran prior to interviewing him and did not cite to statements or medical records from prior to April 2013 in assessing his level of functional impairment. Therefore, the evidence does not show a factually ascertainable date when the disability warranted a 70 percent rating prior to April 13, 2023, which is the date the Veteran submitted the higher psychiatric rating claim and the date of the private DBQ. See Swain, 27 Vet. App. at 224; DeLisio, 25 Vet. App. at 56; see also McGrath, 14 Vet. App. At 35-36. Since April 13, 2023, the evidence does not show that a rating in excess of 70 percent is warranted. The private psychiatrist reported that the Veteran was oriented with judgment grossly intact, adequate memory and insight, and above average intellectual functioning. The psychiatrist found that the nature and severity of the Veteran's psychiatric symptoms warrant a 70 percent rating based on occupational and social impairment with deficiencies in most areas. In addition, the Veteran's representative's claim that the psychiatrist reported symptoms indicative of a 100 percent rating is incorrect. Furthermore, the Veteran continues to work and remains married to his wife and living with his family. Therefore, he has not experienced total occupational impairment or total social impairment at any time during the appeal period. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and an initial rating in excess of 50 percent prior to April 13, 2023 or in excess of 70 percent thereafter for trauma and stress related disorder, anxiety disorder, and insomnia disorder is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND 1. An initial compensable rating for of right foot idiopathic peripheral neuropathy. 2. An initial compensable rating for of left foot idiopathic peripheral neuropathy. The Veteran is seeking higher initial ratings for his service-connected bilateral foot neuropathies. During VA treatment in January 2015, the Veteran reported walking without foot symptoms while using custom orthotics. In July 2015, he reported taking 100 milligrams (mgs) of Gabapentin daily for foot pain and using Tramadol only when exercising. In October 2015, he increased his dosage of Gabapentin to 300 mgs The Veteran was afforded VA peripheral neuropathy and foot examinations in November 2016. The Veteran reported experiencing the onset of bilateral foot nerve damage after surgery to remove bone spurs in 2005. He also reported constant burning, throbbing pain to the top of his foot. He further reported flareups of burning pain caused from walking throughout the day. The Veteran submitted a statement in May 2017. He reported that a VA physician told him he is on the strongest dose of medication allowable and that he needs to learn to live with his foot pain. He claimed that his superficial peroneal nerve disabilities should be rated moderate in severity based on severe paresthesia reported by the November 2016 VA examiner. In June 2019, the Veteran submitted an opinion from a private nurse practitioner (NP). The NP reported reviewing the Veteran's VA treatment records and examinations. The NP did not report examining or interviewing the Veteran to evaluate the severity of these disabilities. The NP claimed that the Veteran experiences debilitating foot pain absent medication and is unable to walk. The NP also claimed that the "October 2016" VA examiner evaluated the severity of the disabilities after the effects of medication. The NP further claimed that absent the effects of medication that the Veteran's superficial peroneal nerve peripheral neuropathies are severe. The Veteran was again afforded VA peripheral neuropathy and foot examinations in April 2021. During the neuropathy examination, the Veteran reported experiencing burning sensation in feet and shooting pains that started in his feet and would go up his shins. He also reported that the pain had stayed the same since onset and is four out of ten in severity. During the foot examination, the Veteran reported experiencing flareups four or five times per month lasting one minute each and nine out of ten in severity. The examiner noted that the Veteran takes 600 mgs of Gabapentin and 100 mgs of Tramadol twice daily. The Veteran was afforded another VA peripheral neuropathy examination in August 2021. The Veteran reported experiencing shooting pains that start in his feet and go up to his shins since bone spur surgery. He also reported that his pain is worse first thing in the morning and after being on his feet all day. The examiner noted that the Veteran takes Gabapentin and Tramadol twice daily. The Board finds that there a remand is necessary to obtain an examination for these claims that includes findings as to the severity of these disabilities in the absence of the ameliorative effects of medication. See Ingram v. Collins, No. 23-1798, 2025 U.S. Vet. App. Claims LEXIS 327, at *14-16 (Mar. 12, 2025). These claims are REMANDED for the following action: Schedule the Veteran for a VA examination to assess the severity of the service-connected right and left foot idiopathic neuropathies. (a.) The examiner should provide an assessment of the severity of these disabilities in terms of mild, moderate, or severe, or complete paralysis in the absence of the ameliorative effects of medication. (b.) The examiner should provide retrospective as to the severity of these disabilities in terms of mild, moderate, or severe, or complete paralysis in the absence of the ameliorative effects of medication at the time of the VA examinations conducted in November 2016, April 2021, and August 2021. If the examiner cannot provide some or all of the requested opinions, he or she MUST explain whether it is due to the limitation of knowledge in the medical community at large. A rationale should be provided for opinions expressed. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jimerfield, David 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.