Citation Nr: 21001178 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-61 713 DATE: January 7, 2021 ORDER Subject to the laws and regulations governing the award of monetary benefits, an initial 70 percent rating, but no higher, for the service-connected posttraumatic stress disorder (PTSD) is warranted for the entirety of the appeal period. REFERRED ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is referred to the agency of original jurisdiction (AOJ) for appropriate action. FINDING OF FACT Throughout the entirety of the appeal period, the signs and symptoms of the Veteran's service-connected PTSD have more nearly approximated occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW Throughout the entirety of the appeal period, the criteria for entitlement to an initial 70 percent rating, but no higher, for the service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1970 to September 1973. In April 2020, the Board remanded the claim to allow the AOJ an opportunity to review additional evidence that was submitted after the issuance of the December 2016 Statement of the Case (SOC), as requested by the Veteran. See March 2020 Additional Evidence Response Form (labeled as Hearing Request). At the time of the Board’s April 2020 remand, the Veteran’s PTSD was evaluated as 30 percent disabling. Later in April 2020, the AOJ granted a 70 percent rating for the Veteran’s PTSD, from August 16, 2016. Because the maximum benefit was not granted now or during the pendency of the appeal period, the issue of entitlement to a higher evaluation remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.§ 7107(a)(2). During this appeal, the Veteran retired from work due to symptoms involving his prostate. See September 2015 Correspondence; November 2015 VA Examination Report for Post-Traumatic Stress Disorder. Service connection for residuals of prostate cancer has been in effect (with disability ratings reflecting various levels of severity) since September 30, 2010. Currently, this service-connected disability is evaluated as 40 percent disabling. See April 2020 rating decision. Accordingly, the Board is referring this issue to the AOJ for appropriate action. Initial Increased Rating For Service-Connected PTSD The Veteran seeks a higher rating for his PTSD. His psychiatric disorder is rated under Diagnostic Code 9411, in accordance with the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for 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; difficulty in establishing effective work and social relationships. Id. A 70 percent evaluation 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 100 percent evaluation is warranted if 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; memory loss for names of close relatives, own occupation, or own name. Id. The United States Court of Appeals for the Federal Circuit has acknowledged the "symptom-driven nature" of the General Rating Formula and has explained that "a veteran 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, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. Turning now to the pertinent evidence of the record, the Veteran recorded his symptoms in a daily journal. In that journal, he explained constantly having violent nightmares. He also endorsed waking up multiple times in the middle of the night due to those nightmares. He discussed his strange and unpredictable behavior, which he attributed to stress, and also noted how those symptoms affected his relationship with his family, specifically his wife. He also stated that he was having difficulties dealing with loud noises. See September 2015 Correspondence. In a September 2015 Mental Health Note, the Veteran’s symptoms included recurrent and intrusive recollections of trauma, nightmares, avoidance of thoughts, feelings, or conversations about trauma, avoidance of traumatic reminders, sleep disturbances, irritability or outbursts of anger, hypervigilance, and exaggerated startle response. The Veteran described his strategies in dealing with being very irritable and angrily reactive. He reported having significant nightmare activity, usually violent and Vietnam related. It was noted that the Veteran had an increase in symptoms in April. This was attributed to not drinking and retiring, which was stated to have helped him manage his PTSD symptoms. See August 2017 VA Medical Treatment Records (CAPRI). In an October 2015 Mental Health Note, the Veteran reported that he continued to be quite irritable but realized that the medication would take a while to become effective. The Veteran felt that the medication for nightmares was already working, sinc his dreams have changed and were no longer frightening. He was concerned about the medication causing him to awaken in the middle of night and that he could not fall back to sleep. See August 2017 VA Medical Treatment Records (CAPRI). At the November 2015 VA Examination, the Veteran experienced occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during period of significant stress or; symptoms controlled by medication. The Veteran’s psychiatric symptoms included depressed mood, anxiety, suspiciousness, and chronic sleep impairment. Behavioral observations were noted as follows: appearance was noted as normal; behavior was very tense; speech was normal; mood was anxious, depressed, irritable, euthymic; affect was congruent with mood; perceptions were noted as unremarkable; thought process was goal directed; thought content was unremarkable; the Veteran was oriented; intelligence was average; attention and concentration was within normal limits; abstract thinking and insight was within normal limits; moral and ethical thinking was within normal limits; commonsense and judgment was within normal limits; appetite was good; energy level was good depression was noted as occasional; and regarding anger, it was noted that the Veteran would verbally explode. The Veteran was capable of managing his affairs. It was noted that the Veteran spent his days helping with chores, both indoors and outdoors. He also helped neighbors with their chores. He watched television and took walks. His hobbies included working out at gym and walking. The Veteran had friends, but he did not speak to his sister. In a November 2015 medical record, the Veteran denied significant improvement regarding his irritability and anxiety symptoms. He reported significant reduction in frequency and intensity of nightmares in the last month and noted that he planned to go to California to visit his children later in the year. Mental health status was noted as follows: appearance was casually dressed; the Veteran was calm, cooperative, and polite; he was alert and oriented; speech was relevant and coherent, normal in volume; thought process was organized; no delusional, violent, or suicidal ideation elicited; the Veteran denied any hallucinations; mood was euthymic, with constricted affect; and he had a fair insight into mental illness. The Veteran denied suicidal and homicidal ideation. No current safety issues were noted. In a November 2015 Mental Health Note, the Veteran reported that the medication to help with his nightmares were working quickly and well. The Veteran expressed that, while he continued to feel somewhat irritable and reactive, he could exit the situation to calm down, which is an improvement. There was no evidence of safety issues. The Veteran’s judgment appeared adequate for most normal life situations. See August 2017 VA Medical Treatment Records (CAPRI). In April 2016, the Veteran reported decreased frequency and intensity of flashbacks and nightmares, reduction in anger and irritability, improved sleep, and less pronounced avoidance symptoms. The Veteran’s anxiety symptoms and startle response were less intense. The Veteran denied hopelessness, violent, or suicidal ideation in the last several months. The Veteran reported having two situationally predisposed panic attacks over several months, with intense anxiety and clammy hand, duration ranging from five to 15 minutes. See August 2017 VA Medical Treatment Records (CAPRI). In May 2016, the Veteran described his RV trip across the country. The Veteran reported that he had a number of panic attacks and anxiety episodes, mostly in relation to the Arizona VA, which is a sprawling complex of buildings with tens of thousands of patients. The Veteran experienced difficulty in crowds, as he becomes exceedingly hypervigilant and anxious. The Veteran expressed that his wife was finally grasping that his irritability and emotional reactivity was not about her, which allows her to be able to “roll with it.” It was noted that the Veteran’s mood was overall euthymic. The Veteran did not report experiencing any suicidal or homicidal ideation. Primary symptoms noted included hypervigilance, emotional reactivity, and anxiety with episodes of panic in certain kinds of situations. See August 2017 VA Medical Treatment Records (CAPRI). In a June 2016 Mental Health Note, the Veteran reported still feeling quite hypervigilant and reacts dramatically to sounds that he does not expect to happen. The Veteran also continued to focus on angry outbursts he has had and described situations which he had to walk away as he feared he would become aggressive. In an August 2016 Mental Health Note, the Veteran reported experiencing episodes of emotional reactivity and was easily frustrated by certain things. He continued to have memories about Vietnam, which were somewhat disturbing. He tried to keep them in the background. The Veteran learned that when he gets angry around his wife, to simply withdraw and go outside for walk to cool down. See August 2017 VA Medical Treatment Records (CAPRI). At the August 2016 VA Examination, the Veteran experienced 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. The examiner indicated that the Veteran’s alcohol use disorder was in remission, therefore the impairment noted was solely attributable to PTSD. The Veteran reported that his marriage with his wife is successful. He did express that his irritability continued to create tension between them at times. The Veteran could be highly reactive to loud noises, which he sometimes directed towards his wife. The Veteran reported that he still lost his composure and would become highly angry with his wife at times. The Veteran described the relationship with his two sons as good. He kept in regular contact with them. He also reported good relationships with his three grandchildren and two great grandchildren. The Veteran is estranged from his sister. The Veteran has several friends, which he saw two to three times a week. The Veteran did report instances of losing his composure, becoming dysregulated, and yelling at friends and family members at times when he felt angry, stress, or startled. He denied having lost or alienated friends as a result of his outbursts. The Veteran’s psychiatric symptoms included anxiety, panic attacks that occur weekly or less often, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, and impaired impulse control, such as unprovoked irritability with periods of violence. Behavioral observations were noted as follows: appearance was adequately groomed; eye contact was good; motor activity was unremarkable; attitude was appropriate; recent mood was irritable and angry; affect was appropriate, normal, and congruent with mood; speech was unremarkable, normal in rate and volume; thoughts were linear and logical; there were no delusions, hallucinations, suicidality, or homicidality present; orientation was intact; attention and concentration was unremarkable; judgment was good; intellectual ability was average; there were no memory problems; and abstraction was normal. The Veteran was able to manage his affairs. In October 2016, the Veteran reported ongoing periods of anxiety and irritability, especially when dealing with VA not paying a bill that has gone to collections. The Veteran was very sensitive to sudden intense sounds which frequently sent him into a panic. See August 2017 VA Medical Treatment Records (CAPRI). In June 2017, it was noted that the central focus of the session was around the reemergence of the Veteran’s prostate cancer. The Veteran felt he was handling it quite well and felt upbeat and positive about his ability to be “needed again.” He stated that his mood has overall been good, still having some experiences of irritability and emotional reactivity, but those are manageable. See August 2017 VA Medical Treatment Records (CAPRI). In a January 2018 Mental Health Note, the Veteran, accompanied by his wife, discussed the difficulties he experienced during their RV trip to the south. He reported that he experienced anxiety and that he felt that some events that occurred mimicked events from Vietnam. The Veteran’s wife reported an extreme exacerbation of an exaggerated startle response. The Veteran described feeling a certain sensitivity to some sharp noises that were just part of normal living. Relevant mental status findings stated that the Veteran looked more tense and was still tremulous to some extent. In February 2018, the Veteran reported some improvement since the vacation events. See October 2018 VA Medical Treatment Records (CAPRI). In October 2018, the Veteran continued to have episodic panic attacks. He still felt he showed improvement in that area. He tried to stay busy and positive. See September 2019 VA Medical Treatment Records (CAPRI). In June 2019, the Veteran reported doing reasonably well. He had been traveling with his wife in their RV. The Veteran reported not having a panic episode for several months. It was noted that the Veteran did not place himself in situations where panic may be a response to that situation. See September 2019 VA Medical Treatment Records (CAPRI). After a thorough consideration of the evidence, the Board determines that, throughout the entirety of the appeal period, the level of severity of the Veteran’s PTSD symptoms more nearly approximated the severity level contemplated by the 70 percent rating criteria, but no higher. The evidence clearly depicts that the Veteran has experienced constant irritability and anger, which resulted in outbursts. In each examination or session, his difficulties with impaired impulse control were discussed. The Veteran also exhibited unpredictable behavior, which was attributed to stress. The Veteran also experienced constant hypervigilance, panic attacks, and anxiety symptoms. Accordingly, throughout the entirety of the appeal period, the Board finds that the severity, type, and frequency of the Veteran’s PTSD symptoms, specifically his impaired impulse control, hypervigilance and difficulty in adapting to stressful circumstances, rise to the severity level contemplated by the 70 percent rating. However, at no time during the appeal period has the Veteran exhibited total occupational and social impairment as a result of his PTSD, which is required for the next higher rating of 100 percent. During the multiple evaluations, the Veteran's behavior has always been appropriate. He was interactive and able to communicate. His thought process has always been noted to be normal. He has consistently denied any suicidal or homicidal ideations, as well as denied delusions and hallucinations, and he has never been deemed to pose any threat of danger of injury to himself or others. He has maintained a good relationship with members of his family and friends, and he is able to perform activities of daily living, including performing indoor and outdoor chores and exercising. Accordingly, the Board concludes that the Veteran is not entitled to a 100 percent rating for his PTSD at any time during the appeal period. Lastly, the Board has considered whether the evidence of the record raised the issue of entitlement to a TDIU, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Under Rice, a claim of entitlement to a TDIU rating may be inferred from a claim of entitlement to an increased rating that is currently on appeal. In the current appeal, the Veteran has not asserted, nor does the evidence suggest, that his service-connected PTSD precludes him from obtaining or maintaining substantially gainful employment. In fact, the Veteran asserts that work helps to alleviate his PTSD symptoms. See September 2015 Mental Health Note. As a result, the Board is not assuming jurisdiction of a TDIU claim, as it is not part and parcel of the increased rating claim on this current appeal. [However, as noted earlier herein, as the Veteran asserts that he stopped working due to his service-connected prostate cancer residual symptoms, he is certainly welcome to file a claim for a TDIU based on this service-connected disability in accordance with the regulations governing the filing of claim for benefits.] THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.