Citation Nr: 20007149 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 15-02 271 DATE: January 28, 2020 ORDER Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT For the period on appeal, the Veteran’s PTSD symptoms more nearly approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to an increased rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from March 1966 to December 1969. He received various medals to include the Vietnam Service Medal with Bronze Star. The issues are on appeal from a December 2013 rating decision. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Entitlement to a rating in excess of 50 percent for PTSD The Veteran seeks an increased rating for his PTSD. He is currently rated at 50 percent under Diagnostic Code 9411. Diagnostic Code 9411 uses the General Rating Formula for Mental Disorders, which provides that a 50 percent rating is warranted for a mental disorder 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 effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted for a mental disorder 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 a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for a mental disorder 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 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. Id. Turning to the evidence, VA medical records show he sought treatment with a VAMC therapist for his PTSD symptoms. The therapist’s and general VA medical center treatment records describe the Veteran as oriented to person, place, and time. He displayed normal judgment, mood, and affect; and spoke coherently. The Veteran’s struggles with short-term memory problems, difficulty concentrating, and sleeping issues were reported and discussed. He also experienced frequent flashbacks of his time in Vietnam. Suicidal or homicidal ideation or intent was denied. The Veteran reported lacking motivation or drive and complained of sensing little pleasure. The Veteran reported staying married to his wife and having good relationships with her and his two sons. He often and consistently saw his two sons and grandchildren. In a July 2012 VA therapist note, it was explained that the Veteran had been seen over the course of a year for support but the Veteran had begun to work more often, and would no longer be able to participate in therapy on a regular basis. The Veteran reported in January 2013 that he was struggling with a lack of structure in his daily life due to retirement. Further, he revealed that he wished to contact an old corpsman buddy and was attempting to muster the courage to do so. The Veteran was afforded a VA examination in September 2013. The Veteran reported that he was an avid handgun shooter, shooting out to 200 yards. However, he ceased to play golf nor fish – two examples demonstrating that he no longer desired to participate in activities. Although he had retired six years prior from his full-time position of more than 29 years, he occasionally worked delivering cars for car dealers. During the examination, the Veteran complained of his day-to-day memory failing him. He was taking Citalopram Hydrobromide and had not seen his VA therapist for around three months. The examiner found the Veteran’s PTSD manifested in symptoms of anxiety and chronic sleep impairment. He opined these symptoms were of mild severity and resulted in occupational and social impairment with reduced reliability and productivity. The examiner specifically remarked that the Veteran’s PTSD would not render the Veteran totally incapable of obtaining or maintaining either physical or sedentary gainful employment. A VA treatment note from February 2014 highlighted that the Veteran had little interest or pleasure in doing things and feeling down, depressed, or hopeless more often than not. However, he did not feel hopeless about the present or future and had not had thoughts about taking his own life. Notably, in April 2014, a VA record shows the Veteran underwent a series of tests for his cognitive ability. Tests revealed average or low average functioning in all areas measured except for delayed memory with scores falling below the borderline range. The Veteran acknowledged his difficulty remembering names, appointments, directions, etc., and was encouraged to engage in compensatory strategies such as using GPS when driving. In November 2014, the Veteran underwent another VA examination. He told the examiner that he no longer golfed or fished. Rather, for recreational and leisure time, he played video games or shot handguns. The examiner noted the Veteran’s report that he had not worked since his retirement. The examiner observed the Veteran’s PTSD manifested with symptoms of anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. He was found capable of handling his financial affairs. As a result, the examiner found the Veteran’s PTSD caused occupational and social impairment with reduced reliability and productivity. The Veteran’s most recent VA examination was in June 2019. The Veteran described his relationship to his wife of 48 years and his two sons as okay. He maintained that he lost interest in activities, such as golfing or fishing, that he once enjoyed. However, he continued to shoot handguns and participated in monthly shooting competitions. Other than the socialization experienced during the monthly shooting competitions, the Veteran communicated that he was too anxious to leave his home – he avoided crowds and family events because they made him feel uncomfortable. During his free time, the Veteran watched television or played video games. The Veteran recounted that he struggled at his former employment of more than 29 years and as a result, he did not like going to work and retired. He revealed experiencing memories and nightmares of his time in Vietnam. These memories popped into his head randomly and in slideshow form. The Veteran felt helpless about his time in Vietnam as there was nothing he could do. He confided to the examiner that that he did not feel emotions normally and must force himself to feel happy and tell jokes when others are around. When his mother, friend, and classmates passed away, he did not let his emotions out. The examiner observed the Veteran was adequately dressed and groomed for the weather. He was anxious and struggled to remain still. When speaking, he was tangential and would tell stories, going off topic, but was also easy to redirect. The examiner noted the Veteran’s flattened affect with normal tone of voice. Addressing his consistent memory problems, the Veteran’s memory appeared strained as he could not recall what he had eaten for breakfast. Given a little time to think, the Veteran was able to recall some facts but others, he could not even for the entire duration of the examination. The Veteran’s PTSD symptoms manifested as depressed mood; anxiety; panic attacks that occurred weekly or less often; chronic sleep impairment; mild memory loss such as forgetting names, directions, or recent events; impairment of short and long term memory; flattened affect; circumstantial, circumlocutory, or stereotyped speech; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances including work or a work like setting. The examiner opined that these symptoms resulted in occupational and social impairment with reduced reliability and productivity. Based on the evidence, the Board finds that the Veteran’s PTSD symptoms more nearly approximate a 50 percent rating. To review, the next higher rating of 70 percent rating is warranted for a mental disorder 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships. At the outset, the Board notes that at no point during the period on appeal did the Veteran display nor was it noted that the Veteran experienced suicidal ideation; obsessional rituals; panic; impaired impulse control; spatial disorientation; or displayed neglect of personal appearance and hygiene. The Board acknowledges that the Veteran suffers from social impairment due to some PTSD symptoms. As discussed above, he consistently reported that he did not like to interact with others and that he suffered from anxiety at the thought of leaving his home. However, the Veteran also progressed from shooting guns recreationally to participating in monthly shooting competitions, where he did engage in socialization. Additionally, until his most recent June 2019 VA examination, he reported that he often saw his two sons and grandchildren. The Veteran was also married to his wife for 48 years. Occupationally, the Veteran retired from full-time employment after approximately 29 years. At one point during the appeal period, he reported working part-time driving cars for dealerships after he had retired from his full-time employment. Finally, the Veteran’s depressed mood did not ever affect his ability to function independently, appropriately, or effectively. The Board notes that the Veteran’s difficulty to adapt to stressful circumstances was not observed by any other physician than the June 2019 VA examiner, and no record of such a problem is included in the Veteran’s VA treatment records dated until January 2019. Therefore, cumulatively, these symptoms were not so severe that the Veteran’s occupational and social impairment resulted in occupational and social impairment deficiencies in most areas. Rather, as the September 2013, November 2014, and June 2019 VA examiners, the Veteran’s PTSD symptoms caused occupational and social impairment with reduced reliability and productivity. For these reasons, the Board finds that an evaluation in excess of 50 percent is not warranted for the Veteran’s PTSD for the period on appeal. REASONS FOR REMAND Entitlement to a TDIU is remanded. In a December 2016 VA treatment record, it was noted that the Veteran’s peripheral sensory neuropathy was managed privately. The Veteran is service-connected for peripheral neuropathy of the bilateral lower extremities. To date, no attempt to retrieve any private medical records have been made. As these may be beneficial for the Veteran’s claim, they should be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 from the private facility or facilities where the Veteran undergoes treatment for the peripheral neuropathy of his bilateral lower extremities. Make two requests for the authorized records from the private facility or facilities unless it is clear after the first request that a second request would be futile.   2. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.