Citation Nr: 21003261 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-01 800 DATE: January 21, 2021 ORDER Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD) prior to December 7, 2016, is denied. REMANDED Entitlement to an initial rating higher than 10 percent for coronary artery disease (CAD) is remanded. FINDING OF FACT From July 23, 2010 to December 7, 2016, the Veteran’s PTSD resulted in impairment that most closely approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for entitlement to a rating higher than 30 percent for PTSD prior to December 7, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1970. In November 2016, the Veteran testified during a travel board hearing before a member of the Board. A transcript of that hearing is of record. In January 2018 the Board remanded the appeal for additional development. In July 2019, the Board denied the claim for an initial rating higher than 30 percent for PTSD prior to December 7, 2016, and a rating higher than 70 percent thereafter was denied. The Board also denied a claim for an initial rating higher than 10 percent for CAD, and remanded the claim for entitlement to a TDIU prior to December 7, 2016, for additional development. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Joint Motion for Partial Remand (JMR), the Court indicated that the Veteran was “no longer pursuing his appeal of claims [of] entitlement to [ ] a rating in excess of 70% from December 7, 2016, for PTSD” and dismissed the appeal with regard to that issue. As a result, the issues remaining in appellate status were entitlement to a rating in excess of 30 percent for PTSD prior to December 7, 2016, and entitlement to a rating higher than 10 percent for CAD. The Court partially vacated the Board’s July 2019 decision with regard to the aforementioned claim and remanded the matters to the Board for action consistent with the terms of the JMR. The Board also observes that the TDIU claim remanded by the January 2018 decision is still being developed by the RO (it appears to have been delayed by the fact that the case had been appealed to the Court, and the RO did not want to address the issue until the actions of the Court were complete, but this is unclear); consequently, adjudication of the remanded issue would be premature at this time. 1. Entitlement to an initial rating higher than 30 percent for PTSD prior to December 7, 2016 Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he is entitled to a rating higher than 30 percent for his service-connected PTSD prior to December 7, 2016. The Veteran’s service-connected PTSD is rated under Diagnostic Codes 9411 which utilize General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under that Formula, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although found to be generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as a depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders, Diagnostic Code 9411. 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted 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); and the 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. As the United States Court of Appeals for the Federal Circuit recently explained, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez–Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.” 38 C.F.R. § 4.126(a). Initially, the Board notes that this claim for a higher rating was pending before the agency of original jurisdiction on or after August 4, 2014. Therefore, the Board finds that the AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 5th Edition (2013) (DSM-5) applies to the current appeal. See 53 Fed. Reg. 14308 (March 19, 2015); 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130 (2017). Accordingly, the Board’s adjudication of this claim cannot include any discussion of the Global Assessment of Functioning (GAF) scores found in the record. See Golden v. Shulkin, No. 16-1208, Slip opinion at 5 (Vet. App. Feb. 23, 2018). With the above criteria in mind, the Board notes that VA treatment records prior to December 7, 2016, show complaints of impaired sleep, irritability, anxiety, intrusive thoughts, depressed mood, self-isolation and nightmare with night sweats. Moderate symptoms of depression were noted. The Veteran resided with his spouse whom he married in 1981. The relationship was described as good and stable. They had no children. He visited his elderly mother, with whom he had a good relationship, daily, until she passed away in 2009. He had no living siblings. The Veteran reported having four good friends. One of his childhood friends passed away in 2009. Upon visiting family and friends in Massachusetts, he expressed a desire for a more fulfilling social life. Occupationally, the Veteran operated a construction company since 1984. The Veteran was consistently described as cooperative and alert with good eye contact. He was appropriately groomed. No abnormal movements or tremors present. Speech was normal in rate, tone, and prosody. Mood and affect ranged from depressed and restricted to euthymic. There was no evidence of delusions, psychosis, or hallucinations. The Veteran endorsed suicidal ideation in December 2009 and August 2016, but denied plan or intent. He denied homicidal ideation. Suicidal assessments in May 2009, August 2011, September 2011, November 2011, March 2012, July 2012, September 2016, October 2016 and November 2016, were negative and the Veteran consistently denied suicidal or homicidal ideation. The Veteran was oriented times three. Cognition was intact. Insight and judgement were good. In 2016, he reported struggling after his friend’s passing as he was charged with handling his deceased friend’s legal affairs. On VA examination in March 2011, the Veteran reported symptoms of generalized fatigue, depressed mood, decreased concentration, irritability, and sleep impairment with insomnia and nightmares. He reported receiving treatment at VA until July 2010, when he stopped all medications and declined further medication management. He was referred to substance abuse treatment for alcohol use. Upon examination, he appeared casually dressed. His psychomotor activity was unremarkable. Speech was soft or whispered. His attitude was cooperative, and her affect constricted. The Veteran’s mood was depressed. His attention, orientation and memory were intact. There was no evidence of delusions or hallucinations. There was no evidence of inappropriate behavior, obsessive/ritualistic behavior or panic attacks. The Veteran denied having any homicidal or suicidal thoughts. The examiner stated that he had good impulse control with no episodes of violence. The examiner diagnosed major depression, recurrent, and alcohol abuse. The examiner noted that the Veteran’s symptoms were not severe enough to interfere with occupational or social functioning. In a statement in December 2011, the Veteran’s spouse noted that the Veteran had a temper when stressed. She also observed that the Veteran was irritable, anxious and depressed. In a statement from August 2012, Dr. S.M. indicated that she had seen the Veteran since April 2009, when he presented with symptoms of insomnia, anxiety, depression, intermittent suicidality, severe insomnia, inability to concentrate, feelings of failure, overwhelming guilt, irritability, intrusive thoughts, and nightmares of Vietnam accompanied by drenching sweating. On VA examination in November 2013, the Veteran reported recurrent and distressing recollections, avoidance of stimuli, impaired sleep, irritability or outbursts of anger, exaggerated startle response, markedly diminished interest or participation in significant activities, restricted affect, anxiety and chronic sleep impairment. There was no history of inpatient treatment or suicide attempts. He was treated with medication. The Veteran reported that he resided with his wife of 33 years. He denied having any family around, but reported having a few friends. He indicated that he was last employed in 2008. The examiner opined that the Veteran’s psychiatric disability was productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. In a May 2015 psychiatric/psychological impairment questionnaire completed by a private clinician, Dr. V.E., noted memory loss for names of close relatives, own occupation or own name; intermittent inability to perform activities of daily living; spatial disorientation; deficiencies in mood; persistent irrational fears; obsessional rituals that interfered with routine activities; deficiencies in family relations; gross impairment in thought process or communication; neglect of personal appearance or hygiene; inability to establish and maintain effective relationships, and; intrusive recollections. Notably, suicidal ideation was not noted. The clinician indicated that the Veteran was unable to perform gainful employment due to limitations. Examination revealed no evidence of impaired memory, attention or concentration and most symptoms were characterized as productive of mild to no impairment. Dr. V.E.’s treatment notes from 2015 through 2016, showed that mental status examination consistently revealed no abnormalities. The Veteran’s appearance was described as clean. Speech was normal. His mood was stable to depressed and affect was appropriate. Thoughts were coherent and he was cooperative. Insight and judgment were good to fair. Suicidal ideation was not reported and the Veteran consistently denied thought to harm himself or others. Accordingly, prior to December 7, 2016, the Veteran’s primary psychiatric symptoms were consistent with the 30 percent rating. He reported symptoms of anxiety and depression, with some social impairment, however, difficulty in establishing and maintaining effective work and social relationships was not shown. In fact, he described good relationships with friends and family, as well as a good and stable relationship with his spouse of over 20 years. Occupationally, the evidence shows that the Veteran successfully managed a construction business for more than 20 years. As for the effect of the Veteran’s symptoms on judgment, thinking, or mood prior to December 7, 2016, mental status examination was consistently within normal limits. There was no evidence of flattened affect; impaired memory, judgment, or abstract thinking, or any other symptoms reflective of a higher 50 percent rating. Additionally, the Board finds that the disability picture presented by the Veteran’s PTSD does not warrant a 70 percent rating. In this regard, the Board notes 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.” Vazquez-Claudio, 713 F.3d at 118. The Board acknowledges that the Veteran endorsed suicidal ideation twice during the relevant six year period on appeal, in December 2009 and August 2016. However, aside from these two notations, he consistently denied suicidal ideation(s), intent, or plan. The facts of this case are distinguishable from Bankhead v. Shulkin, 29 Vet. App. 10 (2017) wherein the Court held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130). Under the unique facts of Bankhead, the claimant was noted to have had recurrent suicidal thoughts and behaviors of varying severity, frequency, and duration throughout the relevant appeal period. Bankhead, 29 Vet. App. at 19-23. Here, apart from the two above-cited references, the Board notes that VA and private treatment records overwhelmingly reflect that prior to December 7, 2016, the Veteran denied suicidal ideation. This case is distinguishable from Bankhead because, unlike in Bankhead, a couple notations of suicidal ideation (passive or otherwise) during the relevant period by themselves or when considered with other symptoms, did not cause the level of occupational and social impairment associated with a 70 percent disability rating. In contrast to Bankhead, in many other instances during the relevant period, the Veteran reported not having such ideation or thoughts. On this basis, the Board finds that the preponderance of the evidence weighs against a finding that suicidal ideation represents the level of disability manifested during this period. It is noteworthy that in a May 2015 psychiatric/psychological impairment questionnaire Dr. V.E. noted symptoms consistent with more severe psychiatric impairment. However, examination findings contradicted the reported symptoms. Examination revealed no evidence of impaired memory, attention or concentration, and most symptoms were characterized as productive of mild to no impairment. Significantly, Dr. V.E.’s treatment notes from 2015 through 2016, showed that mental status examination consistently revealed no abnormalities. The disability picture reported by Dr. V.E.’s report is inconsistent with other evidence of record, including, most importantly, her own treatment notes, which the Board reviewed with some care. In this regard, it is important for the Veteran to understand that not all evidence in this case supports the current finding, let alone a higher rating fort his limited period. To the extent that the medical opinions obtained after December 2016 indicate that the Veteran’s psychiatric symptoms and limitations existed prior to December 7, 2016, as noted above, there is no question that the Veteran’s PTSD was productive of impairment prior to December 7, 2016, which is the basis for the currently assigned 30 percent disability rating. To the extent that it is suggested that the opinions retrospectively (the evaluation of a problem in the past is always highly multifarious and provide great challenges to the Board) support a finding that the Veteran’s psychiatric impairment was as severe prior to December 2016 as it was thereafter, the contemporary medical evidence as detailed above, clearly contradicts that contention. As such, the opinion from Dr. V.E.’s, and purported retrospective opinions regarding the nature and severity of the Veteran’s symptoms and their functional impact prior to December 7, 2016, are afforded little probative value. Upon a detailed review of the record, the Board finds the Veteran’s reported symptoms and cognitive functioning did not result in occupational and social impairment consistent with a higher 50 percent rating prior to December 7, 2016. Generally, the examiners and treating clinicians who treated the Veteran described his occupational and social impairment as no more than mild to moderate, consistent with the criteria for a 30 percent rating, at best. This finding does not suggest that the Veteran did not have problems during this time period. If the Veteran did not have problems, there would be no basis for the 30% finding. The only question is the degree based on a detailed review of the evidence. The Board concludes that the medical findings on examination and treatment notes prior to December 7, 2016, are of greater probative value than the Veteran’s allegations regarding the severity of his psychiatric disability. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an initial rating in excess of 30 percent prior to December 7, 2016. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an initial rating higher than 10 percent for CAD is remanded. As an initial matter, the Board remanded the Veteran’s claim for additional development in January 2018, including for a VA heart examination, because the VA examinations of record were inadequate for rating purposes. The record shows that VA attempted to provide a VA heart examination, to include scheduling a contractor examination, but that Appellant informed VA that he was unable to travel to the examination. Accordingly, in July 2019 the Board determined that there was inadequate cooperation/effort on the Veteran’s part without good cause and decided the claim on the merits based on the evidence of record. The parties in the JMR agreed that the Board did not provide adequate statement of reasons and bases for its determination because the Board did not address a July 2019 letter from the Veteran’s representative asserting that the Veteran had good reason for missing the scheduled examination and was willing to report for a reexamination. The Veteran indicated that he essentially was asking for the examination to be scheduled closer to his home, as he could not travel to the examination location selected. Given the Veteran’s circumstances, the Board finds that there is good cause for him having missed the previously scheduled VA examination, see 38 C.F.R. § 3.655, and that additional efforts should be undertaken to obtain the information requested in the January 2018 Board remand. Accordingly, the claim is remanded The matters are REMANDED for the following action: 1. The Veteran should be contacted and asked which VA medical facility would be most convenient for him, and provide the Veteran with 30-days advance notice of these examinations so he can arrange transportation. The RO must state what efforts were made to schedule an examination. The RO should be cognizant not to schedule the examination in locations for which the Veteran does not have access to transportation. If attempts to schedule an examination fail, the RO should document in the file why and whether or not Veteran was notified of the date and location of the examination. 2. Schedule the Veteran for a new VA heart examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail in accordance with VA rating criteria per Diagnostic Code 7005. The examiner should provide, to the greatest extent possible, comprehensive information that addresses all components of the applicable rating criteria, to include an assessment of exercise capacity in terms of METs (metabolic equivalent); left ventricular function; any evidence of congestive heart failure; and any associated symptoms including dyspnea, fatigue, angina, dizziness, or syncope, and its frequency. If the examiner is unable to obtain reliable METs results, he or she must clearly explain why this is so. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should also address the functional effects of the Veteran’s disability on his ability to secure or follow a substantially gainful occupation. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.