Citation Nr: 21001285 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-03 091 DATE: January 7, 2021 ORDER Entitlement to an increased rating for posttraumatic stress disorder (PTSD), evaluated as 50-percent disabling prior to February 16, 2017, is denied. Entitlement a rating higher than 70 percent for the PTSD since February 16, 2017 also is denied. REMANDED Entitlement to an increased rating for diabetic nephropathy, rated as 60-percent disabling, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.   FINDINGS OF FACT 1. Prior to February 16, 2017, the Veteran's service-connected PTSD did not cause more than occupational and social impairment with reduced reliability and productivity, and since February 16, 2017, at most, it has caused occupational and social impairment with deficiencies in most areas. 2. Neither prior to nor since February 16, 2017 has the PTSD caused what amounts to total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to a disability rating higher than 50 percent for the PTSD prior to February 16, 2017.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria also are not met for entitlement to a disability rating higher than 70 percent for the PTSD since February 16, 2017.  Id. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran and his wife testified in support of these claims during a February 2020 hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record.   Increased Ratings 1. Entitlement to Higher Ratings for the PTSD In a rating decision issued in November 2014, the local regional office (RO) granted service connection for PTSD and assigned an initial 50 percent disability rating retroactively effective from April 29, 2014. In February 2016, the Veteran filed a claim for a higher rating for this disability. In March 2017, the RO granted a higher 70 percent rating as of February 16, 2017. Under 38 C.F.R. § 3.400(o)(2), the effective date in a claim for an increased rating can be up to one year prior to the date of receipt of the increased rating claim if it is factually ascertainable that a higher rating was warranted for the disability during that immediately preceding year. See Harper v. Brown, 10 Vet. App. 125, 126 (1997), citing 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year “grace period” for filing a claim following an increase in severity of a service-connected disability). Thus, the Board has considered the evidence from one-year prior to the February 2016 date on which the Veteran filed his claim for an increased rating for this disability to determine whether it reflects a worsening during that period. February 2015 – February 16, 2017 The Veteran would be entitled to a higher 70 percent rating during this earlier period if he had 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); inability to establish and maintain effective relationships). See 38 C.F.R. § 4.130, DC 9411. The Veteran would be entitled to an even higher 100 percent rating if he had 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. 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 for Mental Disorders 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. Here, though, the evidence of record does not reflect that the Veteran’s disability symptoms more closely approximate those required for a 70 percent or 100 percent rating, again, at least during this initial period being considered. For example, VA clinical records dated in 2015 show he had stable thoughts, denied suicidal or homicidal ideation, and was alert and correctly oriented to time, place, person and situation (e.g. January 2015 and November 2015). A November 2015 record reflects that he had insomnia and got “pissed off” easily, but he denied suicidal ideation and denied homicidal ideation. VA records dated in 2016 also indicate he was alert and correctly oriented in all spheres (July 2016, December 2016) and denied suicidal ideation and/or homicidal ideation (July 2016). Vet Center records (RCS Client Information Record) show the Veteran participated in PTSD group meetings and was cooperative, active, and/or engaged (e.g. June 2015, September 2015, October 2015, December 2015, January 2016, March 2016). A November 2015 record reflects that he was called for a health welfare check and reported that he was “doing well”; his voice appeared in good spirits and happy from the phone call. Records also note that, on a scale of 1 to 5 (1 being least severe and 5 being most severe), he rated his symptoms as a 3 (January 2015, February 2015, May 2015, April 2015, June 2015, July 2015), and a 2 (May 2015). A July 2015 record shows he was able to manage his symptoms since attending support group therapy on a weekly basis and was no longer in need of individual counseling sessions. Those abundance of records are against a finding of occupational and social impairment with deficiencies in most areas and certainly not total occupational and social impairment as they affirm the Veteran was able to converse effectively with others, was alert and correctly oriented by all measures, and that even he assessed his own symptoms as only 2-3 out of 5 in possible severity. A March 2016 Disability Benefits Questionnaire (DBQ) indicates the Veteran denied a history of legal problems, denied a history of alcohol abuse, and denied a history of substance abuse. He reported anxiety, mild memory loss, disturbances of mood and motivation, and difficulty in establishing and maintaining effective work and social relationships. He also reported that he is irritable with his wife and has become more irritable and short-tempered since he is no longer working (he retired in 2013). As well, he reported that he was not busy enough. He also reported that he does not like going to family gatherings, if there are too many people, and that he and his wife argue about the idea that he does not want to go, and he would prefer to stay to himself. He reported that he gets angry easily and then remains angry for the rest of the day. He also reported problems such as checking outside for trouble, triple checking doors to make sure they are locked, worrying about someone breaking into the house, that he does not like people standing too close to him, that he is jumpy with unexpected sounds, and that he avoids military-themed movies. The examiner observed the Veteran was appropriately dressed, had good personal hygiene, had a logical and goal directed thought process, had normal speech, was able to make and maintain good eye contact, was able to track conversation and provide a coherent history, had intact judgment and intact insight, and had no evidence of hallucinations/suicidal ideation/homicidal ideation or thought disorder. His mood was dysphoric, and his affect was agitated. He was noted to be capable of managing his financial affairs. The examiner found that the Veteran’s symptoms, whether or not in the rating criteria, were best summarized as causing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning anticipatorily with normal routine behavior, self-care and conversation. This assessment correlates to a lesser 30 percent rating. In a September 2016 statement in support of claim (VA Form 21-4138), the Veteran asserted that he had informed the March 2016 examiner that his anger was getting worse, but the examiner disagreed with him over whether his anger was a symptom of his PTSD. He also stated that the examination was only 15 minutes in length and that the examiner had seemed to have already “made up her mind” and was in a rush to go somewhere. The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume they have properly discharged their official duties. Once the presumption of regularity has attached, it may be rebutted by clear evidence of irregularity. In the present case, the examiner was working on behalf of the government and the Board may presume the examiner was competent to examine the Veteran and clinical records. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir 2009) (confirming that the presumption of regularity does not only apply to procedural matters but also applies to the competency of medical professionals). VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence, but the requirement that the veteran raise the issue of the competency of the medical examiner is best referred to simply as a “requirement” and not a “presumption of competency.” Francway v. Wilkie, 940 F.3d 1304, 1307, n. 1 (Fed. Cir. 2019) (en banc). Here, even if the presumption of regularity did not apply to contract examiners, the Board finds that the examination was adequate. The Veteran’s statements are not enough to rebut the evidence of regularity as they do not contain clear evidence that the examiner did not consider the Veteran’s issues with anger given that the examiner noted that the Veteran’s PTSD symptoms cause disturbances in mood and detailed his complaints in the DBQ. In addition, the Board sees that a different clinician who had performed an examination in October 2014 also detailed the Veteran’s complaints of anger and had also found that his symptoms equated with a 30 percent rating. Thus, the 2016 DBQ clinician’s findings are not so aberrant to support a clear finding of irregularity or incompetence or other failing. In November 2016 correspondence, the Veteran’s wife reported incidents when her husband had been drinking heavily and had physically assaulted her, and she had had “many scary times with him”, but she appeared to be detailing her entire four decade history with him since his return from Vietnam in 1971 and did not specify any incident during the rating period on appeal. She stated that he has been getting worse with time, that he gets mad more, and that everything makes him “mad crazy”. She has stated that he has said that, if he had a gun, he would kill people. She stated that “now he gets so mad too because he’s so sick with different health issues physically and mentally. He drinks more too, he doesn’t want to really go anywhere sober even one or two drinks and he feels better.” She also stated that he retired in 2013 (several years prior to the rating period on appeal) because he was always angry, did not trust anyone, was always on defense, could not work with people, and the more he worked, the worse it got. A December 2016 Vet Center record from a readjustment counseling therapist reflects that the Veteran has “significant thought intrusion, hyper arousal, sleep disturbances, recurring nightmares, avoidance behavior, relational issues, anger outbursts, and dissociation.” The Board acknowledges the statements (to include from a former co-worker) regarding the Veteran’s symptoms, including his anger, caused him to retire. However, there are also seemingly contradictory statements that his lack of employment made his symptoms worse, and that he was better when he worked because he kept busy. Regardless, he retired in 2013, prior to the rating period on appeal, and while the history of his disability is for consideration, the Board is more concerned with his symptoms during the rating period on appeal. The most competent and credible evidence does not support that, during the rating period on appeal prior to February 16, 2017, a rating in excess of 50 percent is warranted. The Veteran has not been shown to have the majority of the symptoms noted as examples in the rating criteria for a higher 70 percent rating (again, at least during this earlier period), nor has he had symptoms not listed that are of similar severity. For example, he has not been shown to have obsessional rituals that interfere with routine activities (i.e., checking that doors are locked or that the home is safe has not been shown to interfere with his routine activities); speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; or neglect of personal appearance and hygiene. Although his spouse stated that the Veteran has mentioned that, if he had a gun, he would kill someone, the Board finds that this is hyperbole because the evidence does not reflect that he ever attempted to kill anyone, made plans to kill someone, attempted to obtain a gun, or that his wife, who was aware of the claim, ever contacted law enforcement to avert this eventuality. It seems reasonable that, if he was actually a threat to someone, she would have contacted law enforcement as a preemptive measure. Moreover, as discussed, he has denied homicidal ideation and there is no evidence of record that a clinician has found him to be a danger to others. During this initial rating period under review, the Veteran’s symptoms, to include his sleep impairment, anxiety, mild memory impairment, suspiciousness, disturbances of motivation and mood (i.e. anger), and difficulty with work and social relationships, are adequately compensated by his existing 50 percent rating. Despite all his symptoms, he was able to remain married and attend group therapy meetings as an active participant. He was not arrested for violence or threats, and there is no indication, again, at least during this earlier period, law enforcement was involved due to his anger-management issues or other PTSD symptoms.   Since February 16, 2017 For this succeeding period that also is at issue in this appeal, the Veteran’s PTSD has been rated higher, as 70-percent disabling. He would be entitled to an even greater (and maximum possible) 100 percent rating if he had total occupational and social impairment due to his PTSD. The Board finds that he does not. VA clinical record notes continue to indicate the Veteran has been alert and correctly oriented to time, place, person, and situation, was not feeling hopeless about the present or future, had not thought about taking his life, and was not homicidal (e.g. March and May 2017). A February 2017 DBQ shows the Veteran has been married for 46 years, so is still married. It was noted that he was not on any medications for his mental health. He admitted to past suicidal ideation, albeit without intent, but denied current suicidal or homicidal ideation. He admitted to violent assaults in the past and an arrest for DUI, but he denied problems with alcohol and drugs (the record does not reflect when these incidents occurred). His speech was normal, his facial expressions were consistent with content, his thought processes were linear and logical, he was well-groomed, he had eye contact but a depressed affect. There were no behavioral oddities. The examiner determined the Veteran’s symptoms had worsened in that he now has increased depression. His reported symptoms include depression, anxiety, hyper vigilance, suspiciousness, anhedonia, disturbing memories, nightmares, flashbacks, irritability, social withdrawal, intermittent inability to perform activities of daily living, difficult adapting to stressful circumstances, memory impairment, near-continuous panic or depression, panic attacks more than once a week, and sleep disturbances. It was noted that he does not appear to pose any threat or danger or injury to himself or to others but would benefit from a medication review and requires continued treatment. The examiner considered all the Veteran’s symptoms, whether or not in the rating criteria, and ultimately surmised that his symptoms were best summarized as causing occupational and social impairment with deficiencies in most areas, which equates with the 70 percent rating he has had for his PTSD since February 2017.   More recent records note that he was alert and oriented (March 2017, May 2017, August 2017, September 2017, January 2019), that he reported that he had been doing a “lot of extra work around the yard (December 2018), that he continued to be married, and that he continued to have an active sexual life with his wife (October 2018, March 2019), who also attended many of his appointments. Thus, the evidence does not support the notion that his disability picture more nearly approximates what amounts to total occupational and social impairment. The Veteran testified during his February 2020 hearing before this Board that, when his job was transferred from a warehouse where he worked by himself to working with other people, he had problems with it, got into arguments with other employees, and quit/retired in 2013 to avoid further conflict and getting fired. However, again, that was prior to the rating period on appeal and does support findings that he has total occupational and social impairment, only that he could not work well with others in 2013. Also bear in mind that he additionally is pursuing a claim for a TDIU – which, unlike the rating for his PTSD, does not require “total” occupational impairment. A Veteran need not establish “100 percent unemployability” to prove an inability to obtain and maintain a “substantially gainful occupation”; the use of the word “substantially” suggests an intent to impart flexibility into a determination of the Veteran's overall employability in the TDIU context. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The TDIU claim that also is at issue in this appeal is being remanded before being decided. In the meantime, the Board finds that the 70 percent rating now in effect for the Veteran’s PTSD adequately compensates him for his symptoms and consequent occupational and social impairment; in short, his disability picture does not more nearly approximate the total occupational and social impairment that is required for a higher 100 percent schedular rating. For these reasons and bases, increased ratings are not warranted – either before or since February 16, 2017. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 2. Entitlement to an increased rating for diabetic nephropathy, current evaluated as 60 percent disabling is remanded. In a July 2017 rating decision, the RO granted service connection for nephropathy and assigned a 60 percent evaluation effective from April 19, 2017 under DC 7541. The RO conversely denied a TDIU. In a July 2017 Notice of Disagreement (NOD) (on VA Form 21-0958), the Veteran contested the denial of a TDIU but did not specifically disagree with the initial rating of 60 percent for his nephropathy. He ordinarily would have to separately appeal this “downstream” issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Nevertheless, the RO considered the NOD as addressing both issues because the issue of entitlement to a TDIU encompasses all service-connected disabilities, so, recognizing this, the RO issued a Statement of the Case (SOC) in August 2017. The Veteran then perfected his appeal to the Board on both issues. 38 C.F.R. § 20.200 (2018). The Veteran testified during his February 2020 Board hearing that, with regards to his kidneys, he had infections in May and November 2019 that required hospitalization. These records are not in his claims file, however, and must be obtained since relevant to the rating for his nephropathy. According to DC 7541, which provides for his disability to be rated based on renal dysfunction, a higher (100 percent) rating is warranted when there is a requirement for regular dialysis or if more than sedentary activity is precluded due to peristent edema with specific laboratory findings, or markedly decreased function of the kidney or other organ systems. The Board thus finds that updated VA clinical records, if any, should be obtained and associated with the claims file so they may be considered. 3. Entitlement to a TDIU is remanded. This remaining claim of entitlement to a TDIU is “inextricably intertwined” with claim for a higher rating for the nephropathy, so it, too, must also be remanded.   Accordingly, these remaining claims are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any treatment, to include hospitalization, for a urinary and/or kidney infection, especially in May and November 2019. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. Also appropriately notify him if unable to obtain specified records. 2. Obtain the Veteran’s VA treatment records for the period from March 20, 2019 to the present. 3. Thereafter, obtain a clinical opinion, based on review of the claims file, as to the severity of the Veteran’s diabetic nephropathy. If there are insufficient laboratory results (e.g. albuminuria, BUN, creatine) to make this determination, he should be scheduled for an examination. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.