Citation Nr: 21002459 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-41 134 DATE: January 13, 2021 ORDER Entitlement to a disability rating of 70 percent, but no greater, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT During the entire period on appeal, the Veteran’s PTSD was manifested by symptoms producing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating of 70 percent, but no greater, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 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 October 1966 to August 1968. He is the recipient of multiple awards and decorations, including the Silver Star, Combat Infantryman Badge, and Purple Heart Medal. This matter came to the Board of Veterans’ Appeals (Board) from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating in excess of 50 percent for PTSD. The Veteran filed a timely notice of disagreement received by VA in November 2015. In June 2016, the RO issued a statement of the case. The Veteran’s substantive appeal was received by VA in August 2016. In February 2020, the Veteran testified at Board videoconference hearing before the undersigned. A transcript is of record. Entitlement to a rating in excess of 50 percent for PTSD. The Veteran contends that a 70 percent is warranted for his service-connected PTSD. See e.g. February 2020 Hearing Transcript. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282, 285–86 (1991). The Veteran’s PTSD is rated under Diagnostic Code (DC) 9411 for PTSD. Ratings under DCs 9201 to 9440 are evaluated using the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Note (2). Under those criteria, a mental condition that has been formally diagnosed, but with symptoms not severe enough to either interfere with occupational and social functioning or to require continuous medication receive a 0 percent rating. 38 C.F.R. § 4.130, DC 9440. A 10 percent rating is appropriate for 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 continuous medication. Id. A 30 percent rating is assigned if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation as normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events). Id. 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 and maintaining effective work and social relationships. Id. A 70 percent rating is assigned 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 that interfere with routine activities; speech that is 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 worklike setting); inability to establish and maintain effective relationships. Id. A 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, memory loss for names of close relatives, own occupation, or own name. Id. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims held that use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Id. at 442–43. Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the general schedule. Id. Rather, VA must “consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the [American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM)].” Id. at 443 (footnote omitted). More recently, the U.S. Court of Appeals for the Federal Circuit held 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, 117 (Fed. Cir 2013). The Federal Circuit explained that in the context of a 70 percent rating, § 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. The Federal Circuit indicated that “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118. The record on appeal reflects that in February 2015, the Veteran submitted a claim for an increased rating for his service-connected PTSD. In July 2015 the Veteran was afforded a VA examination in connection with his claim. The examiner diagnosed the Veteran as having PTSD, which the examiner opined caused occupational and social impairment with reduced reliability and productivity. The examiner indicated that the Veteran’s PTSD symptoms were anxiety, suspiciousness, and chronic sleep impairment. He did not exhibit 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); or disorientation to time or place, memory loss for names of close relatives, own occupation, or own name. On examination, the examiner described the Veteran as appropriately dressed, fully oriented, cooperative, but exhibiting little insight. The Veteran told the examiner that he had been married to his third spouse for 13 years. The Veteran had no contact with his first spouse, and cordial contact with his second spouse. The Veteran reported that his third spouse said he had a bad temper and she refused to sleep with him because she was afraid the Veteran would hit her while they were sleeping. The Veteran stated that he retired in 2011 and since then spent his time doing solitary activities. He did not like to spend time around people because when he did his anxiety rose and he had trouble speaking or functioning well. The Veteran said that his PTSD was getting worse since he retired because he had time on his hands. The Veteran reported he last saw a psychiatrist in about 2013 and that he had stopped taking medication. VA clinical records received in support of the Veteran’s claim show that in September 2015, he requested a referral to psychiatric care. In December 2015, the Veteran attended a counseling appointment at the mental health clinic. The Veteran complained of heightened sadness and numerous vivid memories of combat in the Republic of Vietnam. The Veteran also experienced anxiety. Upon examination, the Veteran’s thoughts were linear, logical, goal-directed, and normal in rate. His mood was relatively euthymic, and his affect was appropriate and full in range. He denied suicidal or homicidal ideation and denied any active psychotic material. The Veteran was alert and oriented. At a January 2016 VA psychiatric evaluation, the Veteran stated that his most problematic symptoms were difficulty with sleep, nightmares, and daytime intrusive symptoms (flashbacks). The Veteran also complained of hypervigilance, irritability, and anger. The Veteran stated that violent movies and crowds were common triggers for his symptoms, and he tried to avoid them. The Veteran also said that his wife told him that he had emotional numbing, but the Veteran did not realize it as it happened. He also endorsed mild depression and acknowledged that he had had thoughts about a suicide attempt in the past but said would never do that to his loved ones. The Veteran was interested in restarting alprazolam, to which he had a good response when he previously used it from 2000 through June 2013. The Veteran was casually dressed and appropriately groomed. His speech was clear and fluent. The Veteran stated his mood was anxious, but he was confident about treatment after seeing a therapist. The Veteran’s affect was low and restricted. His thought processes were linear and logical with no loosening of associations. The Veteran denied suicidality, homicidality, paranoid ideation, and ideas of reference as well as auditory and visual hallucinations. The Veteran was alert and oriented to all spheres, he was able to recall recent and remote events without difficulty, and his attention and concentration were intact. His insight into the need for treatment and his judgment pertinent to obtaining and adhering to treatment were good. February 2016 VA treatment records show the Veteran had recently started medication to ease symptoms he experienced because of PTSD triggers and lack of sleep. He stated he was getting slightly more sleep than before. The Veteran said that before retiring in 2011, he was very active and experienced less PTSD symptomatology. Upon examination, the Veteran’s thoughts were linear, logical, goal-directed, and normal in rate. His mood was relatively euthymic, and his affect was appropriate and full in range. The Veteran denied suicidal or homicidal ideation and denied active psychotic material. He was alert and oriented. The treating physician identified that the Veteran was experiencing anxiety and other symptoms related to his PTSD diagnosis. March 2016 VA treatment records show the Veteran had improved sleep, but had recent night terrors regarding combat in the Republic of Vietnam. Upon examination, the Veteran’s thought process was linear, logical, goal-directed, and at normal rate. His mood and affect were relatively euthymic, appropriate, and full in range. He denied suicidal or homicidal ideation and denied any active psychotic material. The Veteran was alert and oriented. VA treatment records from later in March 2016 show the Veteran complained of worsening PTSD symptoms. The Veteran reported that alprazolam was helping him sleep a little, but he continued to have ongoing daytime symptoms of PTSD. The Veteran said he had daily thoughts about traumatic events and ruminated on friends who were lost, which made him very sad. The Veteran was casually dressed and appropriately groomed. His mood was sad, and his affect was low, restricted, and somewhat irritable. His speech was clear and fluent, and his thought process was linear and logical without loosening of associations. The Veteran denied suicidal or homicidal thoughts. The Veteran also denied paranoid ideation, ideas of reference, and auditory and visual hallucinations. His attention and concentration were grossly intact, and the Veteran was alert and oriented to all spheres. In addition, he was able to recall recent and remote events without difficulty. The Veteran’s insight into the need for mental-health treatment was good and his judgment pertaining to obtaining and adhering to recommendations for that treatment was good. The treating VA psychiatrist started the Veteran on fluoxetine. VA treatment records from April 2016 show the Veteran felt alterations to his medication had reduced his PTSD symptomatology. The Veteran reported his mood had been all right and he was not having severe depression or suicidal thoughts. In June 2016 the Veteran was afforded a VA compensation and pension examination. The VA examiner diagnosed the Veteran as having PTSD and opined that it caused occupational and social impairment with reduced reliability and productivity. The examiner observed that the Veteran dressed appropriately for the weather and his hygiene was good. He was oriented to person, place, time, and situation. The Veteran’s speech was within normal limits for rate, tone, volume, and prosody. His thought process was often circumloquacious and he responded to questions with stories rather than information about current functioning, but the examiner was able to redirect the Veteran. There was no evidence the Veteran experienced hallucinations, his judgment appeared within normal limits, his mood was “good,” and his affect was appropriate. The Veteran reported that his marriage ranged from very good to very bad and that his spouse told him he had a temper and was the “meanest person in the world.” The Veteran stated that he and his spouse had “extreme” arguments once every four to six weeks and they bickered daily. The Veteran said that his relationship with his children was “pretty good” but they were not “overly close.” He also reported that he had a friend who lived close and with whom he interacted sporadically. The Veteran said he retired in 2011 and had not worked since that time. He asserted that his PTSD symptoms had worsened since his July 2015 VA examination, including daily intrusive recollections of friends being “blown up.” These recollections had become more frequent, vivid, and closer to the surface since July 2015, and even more so in the prior six weeks while the Veteran was recovering from leg and back problems. The Veteran also reported that his sleep was “terrible”; it was delayed in initiation up to one hour, and then he only slept about 60–90 minutes and he was then unable to fall back asleep for 20–30 minutes. The Veteran said memories of his experiences in the Republic of Vietnam kept him awake. The Veteran reported occasional depressive symptoms and suicidal ideation in response to pain and medical issues. The Veteran also described feelings of guilt related to why he was alive and other servicemembers were not. The Veteran also stated that he avoided crowds and did not trust crowds or people, described hypervigilant behavior, extreme nervousness, feeling jumpy and thirsty, wanting to escape crowds, and in more extreme situations he felt shaky, “shut off,” and unable to concentrate with increased heartrate and respiration. The Veteran said he could manage one-on-one interpersonal situations. The Veteran reported that taking Prozac and environmental changes helped him be calmer. The VA examiner indicated that the Veteran’s PTSD symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation or mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The examiner found no other symptoms of the Veteran’s PTSD. At his February 2020 Board hearing, the Veteran testified about his traumatic experiences in the Republic of Vietnam and described his PTSD symptoms. The Veteran explained that he found it difficult to deal with people, even one-on-one, but he could do it. In crowds, however, the Veteran stated that he would “shut down completely.” The Veteran also discussed flashbacks that were triggered by shows about combat or by loud noises. After careful review of the complete record on appeal, the Board finds that for the entire period on appeal, the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximate the criteria for a 70 percent rating. VA treatment records, the July 2015 and June 2016 VA examinations, and the Veteran’s lay statements show that his PTSD disability was manifested by symptoms associated with a 70 percent rating, including suicidal ideation. He also had symptoms associated with lower ratings, such as: disturbances of motivation or mood, difficulty in establishing and maintaining effective work and social relationships, depressed mood, anxiety, suspiciousness, and chronic sleep impairment. He also had symptoms that are not listed with a specific rating, such as: recurrent, involuntary, and intrusive thoughts and memories; flashbacks with dissociative episodes; avoidance behaviors; avoidance of or efforts to avoid external reminders that arouse distressing memories, thoughts, or feelings; persistent and exaggerated negative beliefs or expectations about himself, others, or the world; persistent, distorted cognitions about the cause or consequences of the traumatic events that led the Veteran to blame himself or others; persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; hypervigilance; intrusive dreams and nightmares about traumatic events; dissociative episodes during flashbacks; irritability, angry outbursts, and a short temper; difficulty with concentration; and impaired insight. The Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 70 percent rating. A number of the Veteran’s symptoms are akin to those contemplated by a 70 percent rating; for example, the Veteran’s temper and irritability are similar to impaired impulse control, and his dissociative episodes are similar to spatial disorientation. The Board also finds the level of impairment caused by the Veteran’s symptoms during the period on appeal more closely approximated the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. The evidence of record detailed above indicates that the Veteran’s PTSD symptomatology impaired his functioning in his marriage, his ability to make and maintain friendships or to even be physically near other people, his hobbies, his insight about the consequences of his behavior and the need to treat his disability, his sleep, and his mood. The evidence also indicates that, were the Veteran not retired during the period on appeal, he would have had impaired function at work because of his difficulties with interpersonal relations, his difficulties with crowds, and his impaired concentration. The evidence of record does not show, nor does the Veteran contend, that his PTSD symptoms more nearly approximated those associated with a 100 percent rating, nor did the Veteran experience total occupational and social impairment. As detailed above, the clinical and lay evidence show that although the Veteran had difficulties in his marriage and socially, he was still able to maintain the marriage and relationship with his children. He was able to engage in personal hobbies and maintain at least one friendship. Further, VA treatment records and the VA examinations show his hygiene and dress were consistently appropriate indicating he was able to perform activities of daily living. Examinations showed that he was consistently fully oriented and free from delusions or hallucinations. Although he endorsed a past history of suicidal ideation, he consistently reported that he would not attempt suicide nor did he ever exhibit homicidal ideation, indicating that he is not a danger to himself or others. Examinations also consistently showed that he did not have an impaired thought processes nor did he ever exhibit memory loss for names of close relatives, his own occupation or his own name. Again, examinations consistently found him to be fully oriented to time and place. In addition, no VA examiner concluded that the Veteran’s PTSD was productive of total social or occupational impairment. Indeed, the Veteran has not contended otherwise. Rather, at his February 2020 Board hearing, the Veteran testified that it was his belief that his PTSD symptoms were most appropriately described by the 70 percent rating criteria. The Board also finds that entitlement to a total rating based on individual unemployability (TDIU) has not been raised by the record or by the Veteran. Although the Veteran retired in 2011 and has not worked since that time, the record contains no indication, nor has the Veteran contended, that he is unemployable as a result of his PTSD. Accordingly, the Board finds that that matter of entitlement to a TDIU has not been raised as part and parcel of the Veteran’s claim of entitlement to an increased rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). For the foregoing reasons, the Board finds that the evidence is at least in equipoise as to whether a 70 percent rating is warranted for the Veteran’s service-connected PTSD. The preponderance of the evidence is against the assignment of a rating in excess of 70 percent for PTSD. To that extent, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hillan Sosa, 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.