Citation Nr: 20021782 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 16-05 820 DATE: March 27, 2020 ORDER Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) for the period from February 15, 2013 to June 16, 2019, is granted. Entitlement to an evaluation in excess of 70 percent for PTSD for the period since June 17, 2019 is denied. FINDING OF FACT 1. For the period from February 15, 2013 to June 16, 2019, the Veteran’s PTSD symptoms have been manifested by ongoing symptoms of depression, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbance of motivation and mood, irritability, impaired memory, difficulty adapting to stressful circumstances, and difficulty in establishing and maintaining relationships, resulting in deficiencies in most areas. 2. From July 17, 2019, the Veteran’s PTSD has not resulted in total occupational and social impairment. CONCLUSION OF LAW 1. The criteria for a rating of 70 percent, but no more, for PTSD, for the period from February 15, 2013 to June 16, 2019, has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.130, Code 9411. 2. The criteria for a rating in excess of 70 percent for PTSD, for the period since June 17, 2019, has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.130, Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service in the Navy from June 1987 to February 1995. This matter is on appeal from a March 2014 rating decision. The Board notes that that the March 2014 rating decision granted service connection for PTSD evaluated at 50 percent effective February 15, 2013. In the submitted April 2014 notice of disagreement (NOD), the Veteran indicated that he was seeking a “70 or 100 percent” evaluation. A July 2019 rating decision increased the Veteran’s PTSD evaluation to 70 percent effective June 17, 2019. As this increase did not constitute a full grant of the benefit sought for the entire appeal period, the Veteran’s claim for a higher evaluation remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). As such, the issues on appeal before the Board have been recharacterized to show an appeal for an increased evaluation in excess of 50 percent for service-connected PTSD from February 15, 2013 to June 16, 2019 and an increased evaluation in excess of 70 percent for PTSD since June 17, 2019 In September 2018, the Board denied the Veteran’s claim for evaluation in excess of 50 percent for the Veteran’s PTSD. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court found the Board did not provide an adequate statement of reasons or bases for their findings and did not address all materially relevant symptoms in the record. The Court issued an August 2019 joint motion for remand vacating the September 2018 Board decision and remanded the appeal for re-adjudication. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 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 C.F.R. § 4.3. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Posttraumatic stress disorder The Veteran is currently service connected for PTSD under diagnostic code 9411, evaluated at 50 percent effective February 15, 2013 to June 17, 2019; and evaluated at 70 percent effective since June 17, 2019. In a submitted December 2019 correspondence, the Veteran’s representative contends the Veteran is entitled to a higher rating for his PTSD in excess of 50 percent for the period from February 15, 2013 to June 17, 2019, and in excess of 70 percent from June 17, 2019. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner’s assessment of the level of disability at the time of examination. The rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. 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 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. Lastly, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: 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 closes relatives, own occupation, or own name. See 38 C.F.R. § 4.130, DC 9411. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. In November 1994 the Veteran was seen for a psychiatric evaluation status post motor vehicle accident supported in August 1994. The Veteran reported that the accident worries him as well as a family member with a chronic illness that was recently hospitalized. The Veteran stated that soon after the accident he felt that “God was not fair and should have killed [the Veteran] totally instead of leaving him with disability.” The psychologist noted the Veteran denied current suicidal or homicidal ideation. The Veteran was observed with grossly intact past and recent memory; no psychotic symptoms; alert; and oriented to place, person, and time. The Veteran was given a diagnosis of adjustment disorder with depressed mood. Review of the Veteran’s medical treatment record shows the Veteran with negative screens for depression and PTSD in February 2003, May 2004, September 2005, September 2006, October 2007, April 2009, and October 2010. In an August 2011 sleep study, the treating physician noted the Veteran’s symptoms upon screening were suggestive of mild depression. In February 2012 the Veteran was give a positive screen for depression but gave negative response to be a suicide risk. In a February 2013 statement, the Veteran stated that he had “recently learned the nervous condition I’ve had for years is PTSD.” The Veteran submitted an April 2013 from an independent psychological associate. The associated stated that they saw the Veteran for a psychological evaluation in March 2013 where he was diagnosed with severe chronic PTSD. The Veteran reported while in active duty service, he witnessed a fellow service member get electrocuted, and later suffered a motorcycle accident. The Veteran stated that after these incidents he began experiences symptoms of PTSD including intrusive thoughts, traumatic nightmares, estrangement and detachment from others, hypervigilance, hyperirritability and exaggerated startled response. The Veteran later states that during his deployment to the Gulf War a sailor killed himself the day after the ship pulled out; the Veteran did not clarify if he witnessed this. The Veteran reports with his hyperirritability he will snap at people and does not apologize. The Veteran stated that with his hypervigilance when in public places he will position himself with his back to the wall so he can see who is coming and going. The Veteran stated that he does not socialize or go to family events and prefers to spend his time alone. The Veteran stated that he has problems with his short-term memory and that his wife complains that he forgets things that she tells him. The associate noted at the evaluation the Veteran was observed to be normally dressed and cooperative. The Veteran was observed with linear though process and oriented to person, place and time. The Veteran denied having any current suicidal or homicidal ideation. The psychological associate concluded that the Veteran’s symptoms have “interfered significantly in his personal, social, and professional life.” The associate found the Veteran’s hypervigilance and hyperarousal made the Veteran unable to initiate or sustain work or social relationships. As such, the associate considered the Veteran to be permanently and totally disabled. The Veteran was afforded a February 2014 VA examination. The Veteran reported that he was currently married but stated the relationship was strained due to his emotional symptoms. The Veteran stated that he has 3 children and that he has good relationships with them. The Veteran reported symptoms of stress intolerance; insomnia; inability to go to large venues and public events; decreased concentration; increased forgetfulness; “anxiety-arousal-nervousness”; “detached-estranged”; and irritability with flareups of verbal anger. The Veteran stated that he “completely avoids talking about his feelings” and experiences depression that is episodic in intensity. The Veteran reported his symptoms were constant and moderate. The Veteran reported he was in private psychotherapy within the last 12 months and denied a history of psychiatric hospitalization, violent behavior or suicide attempts. The Veteran did report that he has had “periodic passive suicidal ideation with injunctions.” The Veteran denied any legal or substance abuse history. The Veteran reported that he currently works in maintenance and that he keeps his distance from his co-workers and his boss by taking on work assignments where he can work alone. The examiner found the Veteran with symptoms of depressed mood; anxiety, chronic sleep impairment; flattened affect; disturbance of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances to include work or worklike setting; and suicidal ideation. The Veteran was observed with appropriate hygiene and appearance, and oriented to person, place and time. The Veteran’s concertation, though process, judgement and memory were found to be within normal limits. The examiner did not find any current symptoms obsessive compulsive disorder, delusions, hallucinations or suicidal and homicidal ideation. The examiner noted the Veteran’s reported suicidal ideation as periodic, passive and with injunction but found it not to be current. The examiner found the Veteran 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. However, it appears to be a disparity between the VA examiner’s findings and the Veteran’s reported symptomatology without further rationale; as such, the Board affords this examination less probative weight. In the submitted April 2014 NOD, the Veteran asserted the March 2014 rating decision erred by not considering the April 2013 independent psychological associates findings. In August 2014 the Veteran gave negative responses to all questions for suicide risk screening. In September 2015, the Veteran submitted another letter from the independent psychological associate who conducted the March 2013 psychological evaluation and April 2013 findings. The associate gave the same diagnosis for severe and chronic PTSD. The psychological associate stated the Veteran continued to suffer “significant disturbances in all areas of his life” due to his PTSD symptoms. The associate noted the Veteran continued to experience sleep problems and reported having more memory problems. The Veteran reported that his becoming more short-tempered, getting into more arguments with his son and having problems interacting with his boss. The Veteran stated that his co-workers complain that he is moody and because he does not like to have anyone see him in pain, keeps people at a distance. The Veteran stated that he thinks about his motorcycle accident and “wonders how he survived it.” The associate concluded the Veteran to be permanently disabled. In January 2016 the Veteran gave negative responses to all questions for suicide risk screening. In February 2016, the Veteran submitted another letter from the independent psychological associate who conducted the March 2013 psychological evaluation and April 2013 findings as well as the September 2015 letter. The associate continued the same diagnoses for PTSD but added a new diagnosis for depressive disorder. The associate reiterated the same findings and conclusions from the September letter but added that the Veteran reported thinking more about seeing his fellow service member getting electrocuted; experiencing more mood swings; and crying easily when thinking about the long time he took to recover from his motorcycle accident. In a June 2018 health assessment, the Veteran reported that after his separation from the military he stopped exercising, started drinking alcohol, suffered from depression and mental health issues and noticed that he was gaining weight. The Veteran was observed to be alert and oriented to person, place and time. The Veteran did not report any hallucinations, delusions, depression, mania, PTSD or other severe anxiety disorder, and verbally or physically abusive behavior. The physician did not find the Veteran to be agitated or disoriented that his safety was endangered or required protection by others. The Veteran was afforded a June 2019 VA examination. The examiner diagnosed the Veteran with PTSD and moderate recurrent major depressive disorder. The Veteran reported his marriage of 21 years to wife. The Veteran stated he had an average relationship with his wife but indicated recently improved relationship. The Veteran reported having 3 sons with whom he has current contact. The Veteran described his relationship with his children as “typical” but also indicated recent improvements. The Veteran reported recent improvements with his immediate family, that he has shared more of his struggles with his wife and eldest son and feels that they are beginning to understand his situation. However, despite the increase in communication, the Veteran reports that he generally feels more depressed about how he has impacted his family and often feels guilty and shame about his past and current behaviors. The Veteran reported periods of irritability and social isolation resulting in limited contact with others. The Veteran stated that he tends to not share his feelings and personal thoughts with friends and family because he feels that he will be judged by them. As such, the Veteran stated that he tends to isolate himself at times and attempt to cope with his struggles by himself. The Veteran reported that he was currently employed as a maintenance personnel and has worked this position for the past 18 years. The Veteran stated that he tends to work alone and travel to different locations to conduct his duties. The Veteran reported that his supervisor wanted him to take a supervisor position; however, the Veteran stated he has apprehension about taking on more responsibilities and having to interact with others as part of the position’s duties. The Veteran denied any legal history. The Veteran reported a past pattern with heavy alcohol consumption involving having multiple drinks throughout the day; however, in 2012 his family complained about his behavior and he significantly decreased his drinking down to 2 beers a week which he has maintained for the past 6 years. The Veteran denied use of any other substances including tobacco. The Veteran reported having a recent increase in the severity and frequency of depressive symptoms. The Veteran stated that he is struggling with non-specific suicidal thinking, hopelessness, helplessness, crying spells, lethargy and lack of motivation. The Veteran indicated that he feels alone most of the time and separate from the others. The Veteran described himself as “moody” and his state of mind and emotion can change quickly resulting in becoming very irritable and depressed. The Veteran reported that when he becomes frustrated, he becomes hypervigilant, irritable and experiences feelings of “impending doom.” The Veteran stated that he continues to experience sleep difficulties with regular nightmares and intrusive images. The examiner found the Veteran with symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; disturbance of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideation; and neglect of personal appearance and hygiene. The Veteran was observed at the examination to be casually dressed and slightly disheveled. The Veteran was cooperative with the examination and denied symptoms of psychosis and delusions. The examiner found the Veteran with intact insight and judgement; and his attention, concentration and memory within normal limits. The examiner noted although the Veteran endorsed non-specific suicidal ideation, he denied current planning and intent; the Veteran indicated that he had agreed with his outpatient therapist on an active safety plan if such ideations arise. The examiner found the Veteran to not be considered an imminent danger to himself or others. The examiner found the Veteran with occupational and social impairment with reduced reliability and productivity. The Veteran submitted articles and statements in December 2019 in support of his claim. In a submitted December 2019 from the Veteran, the Veteran stated that he had been hiding his depression since his separation from service. The Veteran stated that he would have angry outbursts with his children, wife and co-workers. The Veteran stated that he started having thoughts of suicide and it started to affect his marriage to the point where he separated from his wife for a period of time because the Veteran did not talk to her or get help. The Veteran stated that he felt shame to tell anyone about his thoughts of suicide. By 2013 the Veteran stated that he was mentally drained from hiding his feelings, thinking “why did God let me live through this horrible accident when everyone says that I should be dead”; the Veteran stated at this point his children and wife were gone or about to leave and realized that he needed help. The Veteran stated that he has since learned to slowly talk to others about things. The Veteran stated that he still has suicidal thoughts but now has someone to call and talk to without having to talk to his wife and children. The Veteran stated that he has spent the last twenty years hiding his feelings and found it still difficult to talk about it now. In a submitted December 2019 statement, the Veteran’s representative stated the evidence of record supported an evaluation in excess of the Veteran’s current rating. The representative indicated the Veteran’s March 2013 report of having to position himself with his back to the wall in public places represented obsessive rituals that interfered with his ability to function in both social and occupational settings. The representative stated the Veteran had an “obsessive need to find a place where [the Veteran] can feel safe in public places.” Regarding the Veteran’s reported suicidal ideation, the Veteran’s representative stated that the Veteran had multiple and recurrent instances of suicidal ideation and continued to experience suicidal thoughts until today. The representative stated that the Veteran reported that he concealed his suicidal thoughts from his wife and others because he felt ashamed; as such, the Veteran’s relationship with his wife suffered. The representative indicated the Veteran’s hyperirritability causes the Veteran to be unable to work well with others, noting the Veteran receives work assignments where he can work alone and relegated to working alone on individual tasks. Upon review of the evidence of record above, taking all factors into consideration with application of the approximating principles of 38 C.F.R. § 4.7, and the benefit-of-the-doubt doctrine, the Board finds that the Veteran’s PTSD warrants a 70 percent disability rating for the period from February 15, 2013 to June 16, 2019. Significantly, the pertinent evidence of record during this period shows the Veteran’s PTSD was manifested by symptoms including suicidal ideation; hypervigilance; inability to establish and maintain effective relationships; chronic sleep impairment; near continuous panic or depression affecting ability to function independently, appropriately and effectively; issues with concentration and memory; disturbance of motion and mood; anxiety; and social isolation. The Veteran throughout the appeal period has stated or testified to having suicidal ideation or thoughts of suicide. The evidence reflects that the Veteran’s PTSD symptoms were of such severity and persistence that they caused moderate to severe impact to areas of the Veteran’s life, including his mood, family and social interpersonal relationships. The Veteran has consistently stated that his symptoms interfered with his work and social relationships; resulting in taking on work assignments where he works alone and unable to properly interacting or communicate with his family, to which he expresses regret. The evidence does not, however, show that since June 17, 2019, the Veteran has had symptoms severe enough to warrant a 100 percent rating. He does not manifest or nearly manifest the behavioral elements of 100 percent disability. There is no documented instance of grossly inappropriate behavior. There is no documented instance of the Veteran being an imminent danger to himself or others, let alone persistence of such danger. There is no clinical evidence of actual disorientation to time and place. The evidence does not show persistent delusions or hallucinations. The Veteran denied a history of legal problems or arrests. The Veteran has stated that he maintains a relationship with his children and wife of 21 years. Although the April 2013, September 2015 and February 2016 independent psychological associate opined the Veteran to be permanently and totally disabled, the associated did not point to specific findings or evidence to indicate the Veteran was an imminent danger to himself others, demonstrated grossly inappropriate behavior, disorientation to time and place, persistent delusions or hallucinations or other behavioral elements of a 100 percent disability rating. Although the June 2019 VA examiner noted the Veteran had symptoms of neglecting personal appearance and hygiene, there is no other record that indicates the symptoms were present prior to the examination. The Board has considered the Veteran and his representative’s statements regarding the severity of the Veteran’s PTSD. However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the evidence of record as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions are outweighed by the evidence of record. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). As such, based on the totality of the disability picture, the Board finds that the Veteran’s PTSD symptoms more nearly approximates occupational and social impairment with deficiencies in most areas during the period from February 15, 2013 to June 16, 2019. The preponderance of the evidence, however, against finding that his disability is manifested by total social impairment since June 17, 2019. Thus, the Board finds an evaluation of 70 percent and no more is warranted for the period from February 15, 2013 to June 16, 2019. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.