Citation Nr: 21000392 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-22 117 DATE: January 5, 2021 ORDER An initial 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) with adjustment disorder (previously evaluated as adjustment disorder with mixed anxiety and depressed mood, persistent) is granted, subject to the rules and regulations governing payment of monetary awards. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran’s symptoms more closely approximated occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial 70 percent rating, but no higher, for PTSD with adjustment disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9440-9411 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1995 to April 1999 and from February 2003 to May 2004. These matters are before the Board of Veterans’ Appeals (Board) on appeal from July 2016 and May 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2019 decision, the Board granted a 50 percent rating, but no higher, for the Veteran’s psychiatric disorder. The Veteran appealed the January 2019 decision to the United States Court of Appeals for Veterans Claims (Court) and in a May 2020 Memorandum Decision, the Court vacated and remanded the January 2019 Board decision. The claim for service connection for hypertension was previously before the Board in April 2020 when it was remanded for further development. Lastly, the Board notes that the Veteran has a claim for service connection for bilateral breast cancer that was previously before the Board in January 2019 and May 2020. The record reflects the Agency of Original Jurisdiction (AOJ) is still taking action on the May 2020 Board remand; as such, the appeal is not ready for adjudication by the Board and will be addressed in a later decision. PTSD with Adjustment Disorder The Veteran contends she is entitled to a rating in excess of 50 percent for her service-connected PTSD with adjustment disorder. Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide used in the evaluation of disabilities encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran’s PTSD with Adjustment Disorder is rated under Diagnostic Code 9440-9411. The General Rating Formula for Mental Disorders provides the following criteria: A 50 percent disability rating is warranted 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, for example, retention of only highly learned material or 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. Id. A 70 percent rating is warranted 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted 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. The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, “a [V]eteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, 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. Turning to the evidence in this case, a review of the record reflects that A.V., Manager of Psychosocial Oncology, provided a statement regarding the Veteran’s symptoms. In the statement, she indicated that the Veteran described symptoms including hypervigilance, irritability, sleep impairment due to nightmares, avoidance of triggering situations (i.e., seeing people in military uniform), relationship issues, isolation, and intense emotional pain. She noted that the Veteran denied suicidal ideation, noting she wanted to be there for her daughter. She also noted that the Veteran reported that she quit her job at the National Security Agency (NSA) because it was too difficult for her to see the military uniforms daily and that her symptoms negatively impacted her marriage, ultimately causing divorce. In May 2016, Dr. T.D. also provided a statement regarding the Veteran’s symptoms. In the statement, she indicated that the Veteran had been working as a U.S. Capitol Police Officer since leaving her position at the NSA. She noted that the Veteran reported jumping in her sleep; feelings of anger; irritability; anxiety, including anxiety attacks with heart racing, shortness of breath, and chest tightness; memory problems (which Dr. T.D. indicated were thought to be related to her anxiety and stress); insomnia; flashbacks; and hypervigilance, noting that she is always alert in the event something bad happens. It was noted that tourist season triggers memories of Iraq and increase her stress levels, so she requested a change to the night shift at work. In addition, the Veteran reported being disciplined at work because of her behavior and indicated that she had been fighting with her mother. The Veteran’s sister, M.H., also provided a statement in May 2016. M.H. reported noticing a change in the Veteran’s behavior when she returned from Iraq, noting that the Veteran was a kind, understanding, easy going, and relaxed person prior to her service in Iraq. She indicated that, when the Veteran returned, she rarely went out in public unless begged and forced because she would rather stay home, she was constantly on guard when around a lot of people, she was easily irritated, and that she wakes up screaming at night. M.H. also noted that the Veteran had started drinking to enjoy herself at parties (which she never used to do). The Veteran’s ex-husband also provided a statement in May 2016. In the statement, he reported that the Veteran was caring, honest, and wonderful prior to being deployed and had become dishonest, unfaithful, and shifty afterwards. He described the Veteran as a nuisance to be around, very hostile, and loud. He reported that he had to remove himself from the marriage (and any relationship with the Veteran), noting that he and the Veteran were not able to co-exist or inhabit the same area for the sake of their daughter. He reported that the Veteran would wake up angry and in a fit of rage for no apparent reason; that she yells and curses constantly; and that she calls and harasses him for trivial reasons, noting that if he does not respond, she will call family members. Lastly, he indicated that the Veteran had stopped dieting, exercising, and practicing good hygiene. The Veteran also submitted a statement regarding her symptoms in May 2016. In the statement, the Veteran reported nightmares; being scared to drive in heavy traffic; hyperventilating; sleep impairment; disciplinary actions at work due to an inability to control her temper or anger; emotional numbness; avoidance of places, people, and news about war; and panic attacks. She also reported that her mood swings, anger, aggressiveness, jumpiness, lack of sexual pleasure, not wanting to deal with her husband; and arguing led to divorce. She also indicated that she was depressed and angry at the world and that she could not go on vacations. She reported difficulties at work as she indicated that her job was stressful because she had to deal with a lot of people and threats, got in conflicts with coworkers and arguments with her superiors resulting in disciplinary action, and that she finds it difficult to work around large groups of people because it reminds her of Iraq. She added that she sometimes leaves work and will get home and have dreams about Iraq resulting in her waking up with her heart racing. Additionally, she reported that she is always alert and watching over her shoulder and that she has panic attacks around large groups of people, noting a few incidents where she had to be taken to the emergency room because of her panic attacks. In a May 2016 Statement in Support of Claim for PTSD, the Veteran reported a change in her duty assignment and changes in performance at work and episodes of depression, panic attacks, or anxiety. In June 2016, the Veteran underwent a VA examination. During the examination, the Veteran reported that she married in 2003 and divorced in 2009. She indicated that she was not currently dating, that she has a daughter, and that she has friends (although she stated she stays away from her friends). She reported that she regularly keeps in touch with her siblings and spends her free time taking care of her home and daughter, vacationing, and exercising. Regarding her occupational history, the Veteran reported that she was currently working as a police officer and had been for the last ten years. She indicated that her medical issues cause difficulties at work. The Veteran also reported her mental health history, noting that she attended therapy, met with a social worker, and attended Employee Assistance Program (EAP) sessions in 2016. She reported no other mental health treatment or psychiatric hospitalizations. There was no legal or behavioral history to report. There also was no substance abuse history, although the Veteran did report that she drinks alcohol once or twice per week. The VA examiner noted that the Veteran’s symptoms included depressed mood, anxiety, sleep impairment, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances (including work). The examiner also noted that the Veteran reported experiencing dreams about service and feeling overwhelmed and shutting down if reminded too much of Iraq. The examiner noted the Veteran had not experienced nightmares, flashbacks, or intrusive re-experiencing. The examiner also noted that the Veteran experienced mild hypervigilance, noting that she does not like people standing behind her; a mild exaggerated startle response, which occurs once per month in response to loud noises; conflicts at work; irritability; self-isolation; and a lack of sexual interest. The examiner indicated that the Veteran was tearful and emotionally upset during the interview, that she was having a hard time with relationships, and that she felt numb most of the time. There was no evidence of suicidal or homicidal ideation. The examiner estimated that the Veteran’s symptoms 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. Lastly, the examiner noted that the Veteran did not meet criteria for a PTSD diagnosis but did report symptoms of depression, anxiety, trauma-related avoidance, irritability, and sleep disturbances. In a November 2016 verified statement, the Veteran reported experiencing anger, anxiety, chronic sleep problems, depression, emotional numbing, heavy use of alcohol, memory loss, nervousness, panic attacks, problems with communication, and getting along with people at work, suspiciousness, a sense of helplessness, taking medication for her psychiatric condition, an inability to share feelings, isolation, and a lack of emotion. Another November 2016 statement indicated the Veteran had been diagnosed with PTSD and had started attending a PTSD class. VA treatment records also provide information regarding the Veteran’s symptoms. For example, a June 2016 note reflects that the Veteran’s mood, speech, and cognition were intact. An August 2016 note reflects that the Veteran stated she cannot get in a relationship, does not go out much, and avoids parties and crowds because she's scared something will happen. She also reported that she is easily angered and very irritable. She reported experiencing flashbacks, vertigo while anxious in crowds, nightmares, and hypervigilance. There was no mania, psychosis, suicidal ideation, or homicidal ideation. Additionally, it was noted that the Veteran reported insomnia, anger, and a depressed mood. In a January 2017 note, the Veteran reported anxiety and irritability. In April 2018, the Veteran reported taking Lexapro, Prazosin, Ambien, and Lorazepam. Mental status examination revealed she was calm, cooperative, and attired appropriately. Her cognitive functioning was grossly intact, she made good eye contact, was in an “ok” mood with congruent affect, had coherent and goal-directed speech, good insight and judgment, and a linear thought process. There were no reports of suicidal ideation, homicidal ideation, or hallucinations. In September 2018, the Veteran reported memory problems, panic attacks, depressed mood, diminished interest in activities, sleep disturbances, fatigue and loss of energy, diminished concentration, and recurrent alcohol use. She also reported a past suicide attempt but denied any current plan. After a review of the evidence and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the evidence demonstrates that the Veteran’s overall disability picture due to her PTSD with adjustment disorder symptoms more nearly approximates the criteria for a higher 70 percent rating. The record indicates that the Veteran’s symptoms caused impairment in her work relations as she has reported quitting a job due to the triggers of being around military uniforms and requested a change in her schedule to avoid crowds at her current job. Additionally, she reported conflicts with coworkers and superiors on her current job. There is also evidence of impairment in her family relations as the record reflects that her symptoms, including her mood swings, anger, aggressiveness, and jumpiness, led to her divorce. There is also evidence of impairment in judgment and mood as the Veteran’s ex-husband reported that she harassed him for trivial reasons and would contact family members when he was not responsive and various VA treatment records indicate the Veteran reported a depressed mood and mood swings. The record also reflects that the Veteran experienced symptoms including panic attacks, hypervigilance, impaired impulse control and unprovoked irritability, difficulty adapting to stressful circumstances (including work), and an inability to establish and maintain effective relationships. The Board acknowledges that the June 2016 VA examiner estimated that the Veteran’s symptoms 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. However, the Board finds that the frequency, duration, and severity of the Veteran’s symptoms most nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, or the criteria for a 70 percent rating. The Board, however, does not find the Veteran’s symptoms approximated a level of severity contemplated by the maximum 100 percent rating criteria. A preponderance of the evidence is against a finding that the Veteran’s symptoms manifested in total occupational and social impairment. Although the record reflects symptoms of such duration, frequency, and severity to reflect a deficiency in the area of social and family relations, the Veteran continues to have some positive family relationships, as she indicated that she regularly communicates with her siblings and spends time vacationing with her daughter, as noted in the June 2016 VA examination. Additionally, although there is evidence of impaired impulse control, the record does not reflect that such was of sufficient severity, duration, and frequency to more nearly approximate the Veteran being a persistent danger of hurting herself or others. The Board also acknowledges that the Veteran reported a suicide attempt but finds the severity, duration, and frequency of that symptom does not rise to the level contemplated by a maximum 100 percent rating as she has consistently denied suicidal ideation in other reports noted in the record. The record also does not reflect other symptoms of such duration, frequency, and severity to more nearly approximate total occupational and social impairment, such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. As the record does not contain any other symptoms alone or in combination whose frequency, severity, and duration reflect that PTSD causes total occupational and social impairment, the Board finds a 100 percent rating is not warranted. Therefore, resolving any doubt in the Veteran's favor, the Board finds that the Veteran's symptoms more nearly approximate the criteria for the assignment of a 70 percent, but no higher, rating because the record shows occupational and social impairment with deficiencies in most areas. REASONS FOR REMAND Entitlement to service connection for hypertension is remanded. The Board finds another remand is required as there has not been substantial compliance with the April 2020 Board remand. A remand by the Board confers on the Veteran, as a matter of law, a right to substantial compliance with remand instructions, and imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the Board proceeds with final disposition of an appeal, and the AOJ has not substantially complied with the remand orders, the Board itself errs in failing to ensure substantial compliance. Id. In the April 2020 remand order, the Board requested the Veteran undergo a VA examination to determine the nature and etiology of her hypertension. Following examination of the Veteran, the examiner was asked to respond to the following inquiries: (i) what is the earliest date possible at which it can be determined that the Veteran met the criteria for a hypertension diagnosis; (ii) whether it is at least as likely as not the Veteran’s hypertension is related to her active service, to include exposure to particulate matter in Southwest Asia; and (iii) whether it is at least as likely as not the Veteran’s hypertension is proximately due to, the result of, or aggravated by any of her service-connected disabilities, to include her adjustment disorder. The Veteran underwent a VA examination in June 2020. A review of the examination report reflects that the examiner noted the Veteran’s hypertension onset in 2006. However, the examiner did not clearly indicate whether 2006 was the earliest possible date in which the Veteran met criteria for a hypertension diagnosis. Furthermore, in responding to whether the Veteran’s hypertension was secondary to any of her service-connected disabilities, the examiner only provided an opinion as to whether her hypertension was proximately due to or the result of her service-connected adjustment disorder; the examiner failed to provide a response as to whether the Veteran’s hypertension was proximately due to or the result of her other service-connected disabilities. Thus, the Board finds remand is required to ensure substantial compliance with the above prior remand directives. Stegall, 11 Vet. App. 271. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of her claimed hypertension. After examining the Veteran, the examiner is to answer the following questions: (a) What is the earliest date possible at which it can be determined that the Veteran met the criteria for a hypertension diagnosis? (b) Is it at least as likely as not that the Veteran’s hypertension is related to her active service, to include exposure to particulate matter in Southwest Asia? (c) Is it at least as likely as not that the Veteran’s hypertension is proximately due to, the result of, or aggravated by any of her service-connected disorders, to include her PTSD with Adjustment Disorder? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts 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.