Citation Nr: 20037548 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 16-25 393 DATE: June 2, 2020 ORDER A disability rating of 30 percent for service-connected posttraumatic stress disorder (PTSD) prior to April 3, 2015 is denied, but a 70 percent rating, but no higher, is awarded thereafter. FINDINGS OF FACT 1. Prior to April 3, 2015, the severity, frequency, and duration of the Veteran’s symptoms resulted in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. 2. Since April 3, 2015, the severity, frequency, and duration of the Veteran’s symptoms has most closely approximated occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to an initial disability in excess of 30 percent service-connected PTSD prior to April 3, 2015 have not been met, but the criteria for a 70 percent rating have been met since April 3, 2015. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.130, Diagnostic Code (DC) 9411 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from September 1988 to January 2010. This matter before the Board of Veterans’ Appeals (Board) is on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a video conference hearing before the undersigned in June 2019. A transcript of the proceeding is of record. This matter was previously before the Board in November 2019. The Board remanded on the issue of entitlement to an initial rating in excess of 30 percent for PTSD to afford the Veteran the opportunity to present for a new VA examination, as his previous evaluation was outdated. A review of the file reflects that a new examination was completed and additional medical records were obtained. The Board thus finds that the AOJ substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected PTSD prior to March 13, 2020, and in excess of 50 percent thereafter The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, DC 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. A 30 percent disability rating for mental disorders to include PTSD is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but generally functioning satisfactorily, with routine behavior, self-care, and normal conversation, due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, and/or recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent disability rating for PTSD is warranted when the Veteran’s symptoms manifest as follows: 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 (i.e. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships. Id. PTSD evaluated at 70 percent disabling requires the following manifestations: 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 that 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/or the inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for mental conditions manifesting with 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. A review of the Veteran’s file reveals the following evidence regarding his PTSD. The Veteran filed a claim for entitlement to service connection for PTSD in February 2014. He endorsed having nightmares and anxiety attacks as a result of his “stressful experiences” while serving during the Gulf War. The Veteran’s CAPRI VA treatment records document consistent treatment for his PTSD with the Birmingham Psychiatry Clinic. During a February 2014 session, the nurse practitioner noted that he had no auditory or visual hallucinations, fair insight and judgment, and logical and goal-directed thought processes. While no suicidal or homicidal ideation was endorsed, he did note that sometimes he became irritated at people and mad enough that he would want to hurt them. The following month, his physician recorded that his job was giving him unnecessary stress, resulting in him getting angry and frustrated. He reported having “graphic” nightmares 3 or 4 times a week as well as depression, anxiety, and frequent flashbacks. He further endorsed feeling on edge “all the time” especially in a crowded room, along with paranoia. He denied suicidal and/or homicidal ideation and hallucinations. In April 2014, a mental health note for the Veteran again reported no suicidal and/or homicidal ideations, but noted he experienced “panic symptoms” whenever he thought about his military experience and that he felt responsible for the deaths of his company. During this visit, he was well-groomed and cooperative, with average eye contact and unremarkable psychomotor activity. He had no disturbances of thought or speech, but his mood appeared depressed, anxious, and irritable. His insight and judgment were good, and he had logical and goal-directed thought processes. The following month, the Veteran reported that he continued to experience significant anger outbursts, but that he had less anxiety in the workplace due to reframing his mindset. Characteristics pertaining to his speech, thought processes, mood, insight, and judgment were largely the same as the previous month. The Veteran continued to deny suicidal/homicidal ideations. At the following visit in August 2014, he reported feeling like he was in a “good place;” He experienced less irritability and anxiety, as well as fewer nightmares. He also endorsed getting along well with others at work. He did not have suicidal and/or homicidal ideations or hallucinations. The following appointments included notes recording similar characteristics, though one documented he was experiencing intrusive thoughts and trauma. The Veteran received a VA examination in October 2014. The Veteran reported working as a logistics manager for the past 3 years, and that the job was going relatively well. He got along well with all of his colleagues, but tended to relate better to the older and more “mature” workers. He had some initial conflict with a new manager, but their relationship had been improving. The psychologist described his PTSD as manifesting with occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. His symptoms at that time included anxiety, panic attacks occurring weekly or less often, chronic sleep impairment, and mild memory loss. Following this examination, the AOJ granted entitlement to service connection for PTSD in a December 2014 rating decision and awarded a 30 percent disability rating from February 4, 2014. A Notice of Disagreement was filed on April 3, 2015. He disagreed with the 30 percent evaluation for his PTSD, expressing that he also suffered from chronic sleep impairment, memory loss, panic and anxiety attacks more than once a week, lack of work efficiency and the ability to perform daily tasks, disturbances in mood and motivation, difficulty establishing and maintaining social relationships, impaired judgment, and violent thoughts and actions towards others. He listed a number of medications, explaining that these dulled his senses and had resulted in an increased flattened affect. CAPRI VA treatment notes during the pendency of the appeal record largely similar characteristics as those documented before the December 2014 rating decision. He continued to report fewer “anger preoccupations,” but expressed that he continued to have nightmares and isolate himself from his girlfriend. He was well-groomed and cooperative, with average eye contact and unremarkable psychomotor activity. He had no disturbances of thought or speech, but his mood appeared anxious and irritable. His insight and judgment were good, and he had logical and goal-directed thought processes. In April 2015, his social worker noted the Veteran seemed fatigued and “highly anxious.” The Veteran reported he ran out of medication and was experiencing panic attacks, sleeplessness, intrusive thoughts, and anger. He became so agitated at work one day that he was asked to go home and collect himself; he also reported he was isolating himself further. On another occasion, he felt guilty for having thoughts about harming the people who failed to supervise a friend’s small child who was killed by a moving vehicle; he denied intent to harm at that time. During this encounter, he was well-groomed, but cooperative, preoccupied, and distraught with intermittent eye contact. He was restless and agitated with increased psychomotor activity and appeared depressed, anxious, angry, and irritable. His thought content included guilt and intrusive thoughts, but his insight and judgment were described as good. The Veteran did not seek treatment again until June 2016, explaining that he had been feeling fine for a while but began to experience worsening symptoms, so he returned. He reported increased stress, unemployment, frequent panic attacks, and nightmares. He further endorsed having suicidal thoughts for six months and was scared he may hurt somebody. He felt angry and irritable for no reason, had problems with memory, and stopped working. The Veteran rated his depression as a 9 out of 10. He bought a handgun, but was unsure why; he had thoughts to shoot himself four months prior. His homicidal ideation was general in nature (not targeting any person in particular). Sometimes, he heard voices/screams and saw blood. His psychiatrist reported that at that time, though, he was not experiencing suicidal or homicidal ideations. In August 2016, he described his mood as the same; he rated his anxiety as a 7 out of 10 and his depression a 10 out of 10. By October/November 2016, he seemed to have improved. It was not until March 2018 that the Veteran was seen at a VA facility again. He reported at that time that he felt his depression was well-controlled and denied suicidal ideation. He expressed similar sentiments in May 2018. In April 2019 – the following visit – he said he preferred to be alone with his thoughts and did not engage others. He explained he had a lot of anxiety and lacked energy. The physician reported no indications of hallucinations, delusions, thought disorganization, mania, or gross cognitive confusion. His thoughts were coherent and well-organized and no suicidal ideation was noted. In June 2019, he reported that his mood was “up and down,” experiencing occasional depression. He endorsed having nightmares every other night and experiencing hypervigilance, irritability, paranoia, and isolation. He denied suicidal/homicidal ideations and hallucinations. A December 2019 treatment note documented that the Veteran was feeling “very depressed” and had been having significant trouble with nightmares. During his June 2019 video conference hearing, the Veteran testified that he was hypervigilant and had difficulty with loud noises and groups of people. He explained that he preferred communicating via text messaging or social media, limiting interactions with others. A second VA examination was performed in March 2020. At that time, the Veteran reported having a very close relationship with his daughter, and a close relationship with his son. He went to the gym and occasionally attended church. He had friends but rarely socialized. He was currently unemployed, but indicated that he was physically unable to perform the demands of his past job. He had a graduate degree in management and hoped to start a business. The examiner stated that the Veteran’s PTSD manifests with occupational and social impairment with reduced reliability and productivity. His symptoms included depressed mood, anxiety, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work. Based on the evidence of record, the Board finds that the Veteran’s PTSD was most closely contemplated by a 30 percent disability rating prior to April 3, 2015 and a 70 percent rating thereafter. Prior to April 3, 2015, the Veteran credibly reported symptoms of irritation, thoughts of harming others without plan or intent, anger outbursts with no actual violence, frustration, nightmares, depression, anxiety, flashbacks, paranoia, intrusive thoughts, and social isolation. His mental status examinations disturbance of mood and motivation and difficulty interacting with others. The Veteran demonstrated “mild” memory which did not rise to the level of forgetting to complete tasks or retaining only highly learned material. The Veteran had thoughts of harming others, but his judgment remained intact with no actual violence. There was no lay or medical evidence of flattened affect, speech impairment, or deficiencies in hygiene prior to April 3, 2015. Additionally, the Veteran self-described working well with his work colleagues, and did not report any significant occupational impairment. The medical opinion of record in 2014, which considered the frequency, severity and duration of all symptoms, found that the Veteran’s overall psychiatric disorder resulted in occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. There is no medical opinion to the contrary, and the Board assigns great probative weight to the opinion of the examiner who has specialized training to evaluate the extent of occupational impairment caused by a psychiatric disorder based upon review of the claims folder, interview of the Veteran, mental status examination and consideration of the frequency, duration and severity of symptoms. The Board finds no factual inaccuracies underlying the examiner’s assessment. Rather, the examiner’s assessment was entirely consistent with the Veteran’s own report of functioning. However, on April 3, 2015, the Veteran reported suffering from chronic sleep impairment, memory loss, panic and anxiety attacks more than once a week, lack of work efficiency and the ability to perform daily tasks, disturbances in mood and motivation, difficulty establishing and maintaining social relationships, impaired judgment, and violent thoughts and actions towards others. He listed a number of medications, explaining that these dulled his senses and had resulted in an increased flattened affect. He had not previously reported these symptoms nor has he given a specific date when these symptoms presented. His clinic records in April 2015 reflect that he ran out of medication and was experiencing panic attacks, sleeplessness, intrusive thoughts, and anger. He became so agitated at work one day that he was asked to go home and collect himself; he also reported he was isolating himself further. His mental status examination was significant for preoccupation, being distraught with intermittent eye contact, restlessness, and agitation with increased psychomotor activity. He reported suicidal ideations in June 2016, and reported that these thoughts had been present for six months. The Board finds that these symptoms more closely approximated occupational and social impairment, with deficiencies in most areas such as work, family relations, judgment, thinking and mood. However, as stated above, the Board cannot factually ascertain that the symptoms supporting the 70 percent rating were present for any specific time prior to the April 3, 3015 statement from the Veteran. His previous reports in the clinic setting and the 2014 VA examination are deemed credible and those statements reflected that the Veteran’s workplace impairment was minimal and symptoms such a flattened affect, suicidal ideations, lack of work efficiency and the ability to perform daily tasks, impaired judgment, and violent thoughts with actions towards others were not present. The Board further finds that a rating in excess of 70 percent is not warranted for any time during the appeal period. The Veteran reports hallucinations and suicidal ideations. However, the Veteran has not been a persistent danger of hurting himself or others, his judgment remains intact and there is no gross impairment of thought processes. There is not “total” social impairment as he reports being very close to his daughter, and being close to his son also. He reports unemployability due to physical rather than psychiatric impairment, and is contemplating opening his own business. Thus, total occupational impairment is not show and unemployability due to his psychiatric disorder has not been reasonably raised at this time. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a rating greater than 30 percent prior to April 3, 2015, but that a 70 percent rating is warranted since April 3, 2015. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria A. Banis, Associate 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.