Citation Nr: 20043732 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 17-36 773 DATE: June 29, 2020 ORDER Entitlement to an initial rating greater than 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The record evidence shows that the Veteran’s service-connected PTSD is manifested by, at worst, complaints of hypervigilance, chronic sleep impairment, a depressed mood, panic attacks weekly or less often, occasional nightmares, and suspiciousness. CONCLUSION OF LAW The criteria for entitlement to an initial rating greater than 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1979 to September 1994, including in the southwest Asia theater of operations during the Persian Gulf War. In March 2019, the Board denied, in pertinent part, the currently appealed claim. The Veteran, through his attorney, and VA’s Office of General Counsel filed a Joint Motion for Partial Remand (Joint Motion) with the United States Court of Appeals for Veterans Claims (Court) requesting that the Court vacate and remand the Board’s denial of an initial rating greater than 50 percent for PTSD. The Court granted the Joint Motion in January 2020. In March 2020, the Board remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. The Board directed that the AOJ schedule the Veteran for updated VA examination to determine the current nature and severity of his service-connected PTSD. This examination occurred in April 2020. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that, because the AOJ granted service connection for a right ankle disability in May 2020 rating decision, this issue is no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). 1. Entitlement to an initial rating greater than 50 percent for PTSD The Board finds that the preponderance of the evidence is against granting the Veteran’s claim of entitlement to an initial rating greater than 50 percent for PTSD. Contrary to the Veteran’s lay assertions, the record evidence shows that this disability is manifested by, at worst, complaints of hypervigilance, chronic sleep impairment, a depressed mood, panic attacks weekly or less often, occasional nightmares, and suspiciousness throughout the appeal period. The Board notes initially that the Veteran’s service treatment records show no complaints of or treatment for PTSD. The post-service evidence shows that, on VA outpatient treatment to establish medical care in April 2016, the Veteran’s complaints included sleep disturbance and irritability. He reported nightmares 3-4 times a week. “Says he wakes up in cold sweats and feels chronically fatigued.” The Veteran’s reported PTSD symptoms included “isolating from people other than family and…a decreased interest in doing activities.” He also was more irritable with his wife and family and experienced some anhedonia, poor concentration, weight gain, worsening energy, “and feeling like a burden.” He denied any suicidal ideation, manic symptoms, auditory or visual hallucinations, and ideas of reference. He experienced increased anxiety related to PTSD. He had good family support with his wife, 3 adult children, and 3 grandchildren. He had been married to his wife for 40 years. Mental status examination of the Veteran showed he was dressed appropriately, fair hygiene, full orientation, mildly anxious behavior, normal speech, no psychomotor agitation or retardation, good eye contact, linear thought process, no suicidal or homicidal ideation, no auditory or visual hallucinations, and fair insight and judgment. The diagnoses included PTSD. The Veteran was advised to start taking sertraline 50 mg every day and Prazosin 1mg as needed. On VA PTSD Disability Benefits Questionnaire (DBQ) in September 2016, the Veteran’s complaints included feeling “more down” and increased flashbacks to his service experiences. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran’s social, marital, and family situations were unchanged since 2012. He still had a good relationship with his adult children and his wife “who…is very supportive.” He met the criteria for a diagnosis of PTSD which included “irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects” at Criterion E. His PTSD symptoms were a depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, and mild memory loss. “The Veteran was polite and friendly.” The VA examiner stated that the Veteran’s service-connected PTSD was his primary mental health diagnosis and resulted in 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. This examiner also stated that the DSM-5 was used at this examination. The diagnoses included PTSD. On VA outpatient treatment in July 2018, the Veteran’s complaints included a depressed mood, insomnia, decreased interest and pleasure in activities, and some decreased motivation. He reported that “his mood has been relatively stable.” He experienced hypervigilance. “Road rage continues to be severe at times, and his wife often drives.” Medications were helpful in reducing his irritability, anxiety, insomnia, and reducing the frequency of his nightmares “to no more than twice per week, compared to the baseline of four or five times per week. He feels that twice per week is tolerable.” His depression was under control on medication. He denied suicidal ideation. He had been married to his wife for over 40 years. Mental status examination of the Veteran showed good hygiene, eye contact, and cooperation, normal speech, normal thought process, logical thought content, no auditory or visual hallucinations, no suicidal or homicidal ideation, good insight and judgment, full orientation, and grossly intact attention and concentration. “He prefers not be alone.” The diagnosis was chronic PTSD. The Veteran was advised to continue taking his medications. In December 2019, the Veteran reported that his mood was relatively stable. He also reported that crowds increase his anxiety but he used his medications for anxiety as needed “about once per day.” He reported hypervigilance & “severe” road rage “at times and his wife usually drives.” His medications decreased his irritability and anxiety. He had nightmares no more than twice a week (compared to a baseline of 4-5 times a week) due to medications which is a “tolerable” level of nightmares to him since they also were less intense. His depression was under reasonable control and he denied suicidal ideation. He still was married to his wife. Mental status examination of the Veteran was unchanged. The diagnosis was chronic PTSD. On VA PTSD DBQ in April 2020, the Veteran reported becoming more withdrawn since his most recent examination. “He does not go out except work or to grocery shop with his wife. His wife has to drive him everywhere.” The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran reported worsening PTSD symptoms. The Veteran’s PTSD symptoms were a depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, appropriate dress, good grooming and hygiene, “a little on edge, but can participate effectively,” appropriate eye contact and social skills, and fully intact “reality testing.” He reported frequent panic attacks especially if out in public. He also reported having no trust in others and being suspicious of others. He still was married to his wife and employed full-time. He experienced chronic sleep difficulties, difficulty getting to sleep and problems staying asleep, and occasional nightmares. The VA examiner stated that the Veteran’s reported symptoms of his service-connected PTSD were a depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, and chronic sleep impairment. The diagnoses included PTSD. Contrary to the Veteran’s lay assertions, the record evidence shows that his service-connected PTSD is manifested by, at worst, complaints of hypervigilance, chronic sleep impairment, a depressed mood, panic attacks weekly or less often, occasional nightmares, and suspiciousness throughout the appeal period. The Veteran reported good relationships with his wife of more than 40 years, his 3 adult children, and his grandchildren throughout the appeal period. These consistent findings on VA examinations and outpatient treatment support the 50 percent rating currently and initially assigned for the Veteran’s service-connected PTSD under DC 9411. See 38 C.F.R. § 4.130, DC 9411 (2019). For example, VA outpatient treatment in April 2016 documented the Veteran’s sleep disturbance, irritability, and nightmares 3-4 times per week. He also experienced increased social isolation and irritability and decreased interest in activities. VA examination in September 2016 documented the Veteran’s complaints of depression and increased flashbacks. His PTSD symptoms were a depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, and mild memory loss. The VA examiner stated that the Veteran’s service-connected PTSD was his primary mental health diagnosis and resulted in 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. Both parties to the Joint Motion criticized the Board for not discussing whether the finding on VA examination in September 2016 that the Veteran experienced “irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects” at Criterion E for a valid diagnosis of PTSD supported the assignment of an initial rating greater than 50 percent for service-connected PTSD under DC 9411. Id. The record evidence, to include the September 2016 VA examination, documents that the Veteran’s complaints of irritability were reduced with medication. As noted above, however, the September 2016 VA examiner specifically found that the Veteran’s service-connected PTSD resulted in, at worst, 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 (i.e., a 30 percent rating under DC 9411). Id. This examination also showed that the Veteran was “polite and friendly” and still had a good relationship with his wife of 40 years, his adult children, and his grandchildren despite his reported irritability and anger outbursts. The Veteran’s PTSD symptoms at this examination were a depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, and mild memory loss. Taken together, the September 2016 VA examination as a whole does not support assigning an initial rating greater than 50 percent for the Veteran’s service-connected under DC 9411. Id. The remaining evidence also does not support granting the Veteran’s higher initial rating claim for PTSD. VA outpatient treatment records dated in 2018 and 2019 show that the Veteran reported in July 2018 that his medications effectively reduced his irritability, anxiety, insomnia, and the frequency of his nightmares “to no more than twice per week, compared to the baseline of four or five times per week. He feels that twice per week is tolerable.” His depression also was under control on medication. He reported consistently that his mood was stable on medication as well. In December 2019, he stated that crowds increased his anxiety but he used his medications for anxiety as needed “about once per day.” The Veteran’s most recent VA examination in April 2020 documented that, although he reported frequent panic attacks especially if he was out in public, he only experienced panic attacks on a weekly or less often basis. He worked full-time and went grocery shopping with his wife who drove them everywhere due to his problems with road rage. He also experienced chronic sleep difficulties, difficulty getting to sleep and problems staying asleep, and occasional nightmares. The April 2020 VA examiner stated that the Veteran’s reported symptoms of his service-connected PTSD were a depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, and chronic sleep impairment. He was dressed appropriately and had good grooming and hygiene, “a little on edge, but can participate effectively,” appropriate eye contact and social skills, and fully intact “reality testing.” There is no indication that the Veteran experienced symptoms of similar frequency, severity, and duration as is required for an initial rating greater than 50 percent under DC 9411. Id.; see also Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran repeatedly denied experiencing suicidal ideation during the appeal period. His speech repeatedly was normal when examined by multiple VA clinicians during the appeal period. His grooming and hygiene consistently were appropriate. He also reported working full-time throughout the appeal period which suggests that he had little to no difficulty in adapting to stressful circumstances like working. He has been married to his wife for more than 40 years and consistently reported a good and supportive relationship with her, his 3 adult children, and his grandchildren throughout the appeal period. Taken together, the record evidence as a whole does not support assigning an initial rating greater than 50 percent for the Veteran’s service-connected PTSD. See 38 C.F.R. § 4.130, DC 9411 (2019). The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 50 percent for his service-connected PTSD. In summary, the Board finds that the criteria for an initial rating greater than 50 percent for PTSD have not been met. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.