Citation Nr: 21002740 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 18-00 095A DATE: January 14, 2021 ORDER Entitlement to a disability evaluation in excess of 20 percent for left lower extremity peripheral vascular disease prior to September 22, 2020, and in excess of 40 percent thereafter is denied. Entitlement to a disability evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to September 14, 2020, and in excess of 70 percent thereafter is denied. FINDINGS OF FACT 1. Prior to September 22, 2020, the Veteran’s left lower extremity peripheral vascular disease was not manifested by claudication on walking fewer than 100 yards, nor by trophic changes or ankle/brachial index of 0.7 or less. 2. From September 22, 2020, the Veteran’s left lower extremity peripheral vascular disease was not manifested by claudication on walking fewer than 25 yards, nor by persistent coldness or ankle/brachial index of 0.5 or less. 3. Prior to September 14, 2020, the Veteran’s PTSD was manifested by a range of symptoms including depression, anxiety, re-experiencing of trauma, sleep disturbance, and memory loss, but did not result in occupational and social impairment with deficiencies in most areas. 4. At no time has the Veteran’s PTSD caused total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 20 percent for left lower extremity peripheral vascular disease prior to September 22, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code (DC) 7114. 2. The criteria for entitlement to a disability evaluation in excess of 40 percent for left lower extremity peripheral vascular disease from September 22, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, DC 7114 3. The criteria for entitlement to a disability evaluation in excess of 50 percent for PTSD prior to September 14, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, DC 9411. 4. The criteria for entitlement to a disability evaluation in excess of 70 percent for PTSD from September 14, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1963 to December 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in May 2019, at which time they were remanded for development. They have been returned to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a disability evaluation in excess of 20 percent for left lower extremity peripheral vascular disease prior to September 22, 2020, and in excess of 40 percent thereafter Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s peripheral vascular disease has been evaluated under DC 7114, which provides for a 40 percent evaluation where claudication occurs on walking between 25 and 100 yards on a level grade at 2 miles per hour; and the disability causes trophic changes or ankle/brachial index of 0.7 or less. A 60 percent evaluation is warranted where claudication occurs on walking fewer than 25 yards on a level grade at 2 miles per hour; and the disability causes either persistent coldness in the affected extremity, or ankle/brachial index of 0.5 or less. A 100 percent evaluation is afforded in those instances where the ischemic limb is in pain at rest, and is either beset by deep ischemic ulcers, or an ankle/brachial index of 0.4 or less. The Veteran is in receipt of a 20 percent evaluation prior to September 22, 2020, and a 40 percent evaluation thereafter. He appeals for higher ratings for both periods. The record reflects a long history of symptoms associated peripheral vascular disease affecting the Veteran’s left leg, including pain on use. However, the earlier portion of the appeal period does not reflect symptoms rising to such a level of severity as to approach those contemplated for a 40 percent evaluation. For instance, at a January 2012 VA examination, testing revealed an ankle/brachial index of 0.93 on the left, suggesting “mild peripheral arterial disease,” with complaints of thigh and calf pain on exertion, and claudication after walking 100 yards. However, there was no evidence of pain at rest, and no coldness of the extremity noted. The examiner confirmed that the record to that point did not show any formal diagnosis of peripheral vascular disease. The Veteran did not undergo a second VA examination in connection with this disability until September 2020. The report associated with that examination reflects continued complaints of pain on use, with additional complaints including constant dull pain in the calf and ankle, along with tingling. Ankle/brachial index was 0.84 on the left, and the examiner noted the presence of trophic changes, and claudication on walking less than 25 yards on a level grade. There was, however, no evidence of persistent coldness in any part of the left leg, nor evidence of deep ischemic ulcers. The findings noted above are uncontroverted by the objective medical evidence of record, including VA and private treatment records. Critically, there has never been any clinical evidence of persistent coldness in the left leg, nor of deep ischemic ulcers, and the Veteran’s ankle/brachial index has never been measured as 0.7 or less. Thus, a review of the evidence indicates that no higher evaluation is warranted for either period herein on appeal. The Board is sympathetic to the Veteran’s belief that his symptoms warrant higher evaluations, but the criteria associated with the DC at issue are specific, and the evidence of record plainly demonstrates that the elements associated with higher evaluations have not been satisfied in this case. Accordingly, the claim for increase must be denied. 2. Entitlement to a disability evaluation in excess of 50 percent for PTSD prior to September 14, 2020, and in excess of 70 percent thereafter The Veteran’s service-connected PTSD has been evaluated under 38 C.F.R. § 4.130, DC 9411. However, the actual criteria for rating the Veteran’s disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. The Veteran is currently in receipt of a 30 percent evaluation for PTSD. A 50 percent rating is assigned 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 (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. A 70 percent rating is assigned for 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. A 100 percent rating is assigned for 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, or for the Veteran’s own occupation or name. 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 occupational and social impairment. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (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. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vasquez-Claudio, 713 F.3d at 118. The Veteran is currently in receipt of a 50 percent evaluation for PTSD prior to September 14, 2020, and a 70 percent evaluation from that date, and seeks higher evaluations for both periods. A review of the evidence in this case convinces the Board than a higher rating is unwarranted for either period herein on appeal. While the Veteran has been beset by a range of psychiatric symptoms throughout the appeal period, and has sought and received counseling and psychotropic medication, he has not experienced those more severe symptoms associated with a 70 percent evaluation, such as impaired judgment, obsessional rituals, illogical speech or thought, near-constant panic attacks, or impaired impulse control, particularly during the earlier period on appeal, nor have his symptoms for the period prior to September 2020 equated in frequency, severity and duration, of occupational and social impairment with deficiencies in most areas such as working, school, family, mood, judgment, and thinking, and he has never been beset by symptoms approaching such a level as might confer total occupational and social impairment. Turning to the evidence, an April 2007 VA psychiatric examination revealed a long history of sleep problems due to nightmares, as well as irritability, hypervigilance, periodic traumatic flashbacks, and anxiety, leading the examiner to conclude that “[t]he effect the symptoms have upon total daily functioning is significant.” Although the Veteran was receiving regular psychotherapy, there was no evidence of psychiatric hospitalization, the Veteran’s appearance, hygiene, and behavior were appropriate, and his orientation was within normal limits. At a December 2011 VA examination, it was revealed that the Veteran was no longer receiving psychiatric treatment, and again, there was no evidence of emergency visits for psychiatric symptoms. The Veteran’s symptoms were largely still present, including sleep disturbance. The examiner also noted a degree of memory loss, although indicating that memory testing was “likely impacted by poor effort.” A February 2014 VA examination suggested an additional measure of symptom improvement from the prior examination, the examiner noting the Veteran “does not need to seek any follow up treatment at this time,” although indicating the Veteran was again attending counseling, and remained beset by many of those symptoms noted above. By the Veteran’s February 2015 VA examination, his PTSD was characterized as “in remission,” with no symptoms significant enough to cause “clinically significant distress.” A May 2017 VA examiner opined the Veteran faced occupational and social impairment due to only mild or transient PTSD symptoms, with his disability “stable and well controlled with medication,” adding that the Veteran “has not had medication for the past 2 months without incident.” A final VA examination, conducted in September 2020, suggested more significant symptoms, including, for the first time in the record, a notation of suicidal ideation, along with a range of symptoms including isolation and limitation of activities, irritability, ongoing sleep problems, memory loss, depression, and anxiety. The examiner concluded that the Veteran faced occupational and social impairment with reduced reliability and productivity. The Board notes that the Veteran’s VA and private treatment records do not contain medical opinions that controvert those discussed above or suggest a disability picture inconsistent with that represented by the VA examination reports discussed above. Overall, the Veteran has never been characterized as a threat to others, and the only evidence of thoughts of self-harm is found in statements made by the Veteran at his most recent VA examination in 2020. Providers and examiners have never identified illogical speech or thought, delusions, hallucinations, frequent panic attacks, or outright inability to socialize or establish and maintain effective relationships. The Veteran has shown memory loss, but it has never been characterized as severe. There is no evidence of impulse control or violent thoughts or behavior, and there is no evidence of contact with law enforcement. The Veteran has never sought emergency mental health treatment. Prior to September 2020 the evidence primarily shows that his condition was in remission, did not require treatment or was mild and there is no indication that his symptoms caused impairment with is family or social interactions, his work, or his thinking or judgment. His mood may have been anxious at times, but this symptom alone does not render his disability picture for this period sufficient to equate in severity, duration or frequency with the level required for a 70 percent rating. As noted above he also does not present for this period with the symptoms listed in the criteria for a 70 percent rating. As for a total rating after September 14, 2020, again, while his symptoms increased at this time, the evidence does not indicate total social and occupational impairment. With regard to social functioning, the Veteran has been married for 25 years and his college age son lives with him, and he noted he and his son spend time together fixing up old cars. Additionally, while the examiner noted that his poor coping skills would make it difficult to handle stress in social situations there was no indication that his poor coping skills rendered him totally socially impaired. Further as to occupational impairment, the Veteran was retired and did not indicate that his psychiatric symptoms had any role in his decision to retire. Additionally, again, the examiner noted that his poor coping skills and irritability may make stress in a work setting and working with others more difficult, the examiner found that these symptoms would only reduce his productivity and did not find that they rendered him totally occupationally impaired. Thus, as with the period prior to September 14, 2020, the evidence does not support that the Veteran’s symptoms equate in severity, frequency or duration to a total rating. In addition, he has not demonstrated sufficient symptoms listed in the criteria for a total rating to warrant the assignment of such a rating. As a result, increased evaluations for both rating periods on appeal are denied. The Board sympathizes with the Veteran’s contention that he believes his PTSD more severe than has been represented by the ratings assigned. However, the record does not warrant assignment of a higher rating for either period herein on appeal. As noted above, prior to September 14, 2020, the evidence did not suggest occupational and social impairment with deficiencies in most areas, and it has never suggested total occupational and social impairment. Thus, the Board finds the Veteran’s PTSD symptoms are adequately accounted for by the already-assigned ratings of 50 and 70 percent, and the appeal for increase must be denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sahraie, 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.