Citation Nr: 21003278 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-35 034A DATE: January 21, 2021 ORDER A rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary awards. FINDING OF FACT Resolving all doubt in favor of the Veteran, for the entire appeal period, his PTSD is manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1971 to May 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in May 2013 by a Department of Veterans Affairs (VA) Regional Office. In January 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In July 2018, the Board denied the Veteran’s claim for an increased rating for his PTSD, which he appealed to the United States Court of Appeals for Veterans Claims (Court). In June 2019, VA and the Veteran (the parties) entered into a Joint Motion for Remand (JMR), in which they agreed that a vacatur of the Board’s July 2018 decision was warranted. The Court granted the parties’ JMR in an Order issued in July 2019, and the case was returned to the Board for further action consistent with the JMR. In August 2020, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to a rating in excess of 50 percent for PTSD. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran is currently in receipt of a 50 percent rating for his PTSD. He filed the instant claim for an increased rating in August 2012 and contends that such disability is more severe than as reflected by the currently assigned rating and, therefore, a higher rating is warranted. Thus, the appeal period before the Board begins on August 9, 2012, the date VA received the Veteran’s claim for an increased rating, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, the Veteran’s PTSD has been assigned a 50 percent rating pursuant to DC 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 50 percent rating contemplates 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; impairments of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where 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; intermittently illogical, obscure, or irrelevant speech; 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. Id. A 100 percent evaluation is warranted where 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. As the United States Court of Appeals for the Federal Circuit 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, DC 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). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court held that the language of the general rating formula “indicates that the presence of suicidal ideation alone…may cause occupational and social impairment with deficiencies in most areas.” However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran’s service-connected psychiatric disability, and their resulting social and occupational impairment. Turning to the evidence of record, a July 2012 VA treatment record revealed that the Veteran was anxious and depressed frequently, but had been depressed since two of friends had died several months previously. He reported that such depression had affected his social life, family, and job, and he became irritable and angry at times. However, the Veteran was oriented in all spheres, and had no suicidal or homicidal thoughts, hallucinations, or delusions. His thought process was also linear. In March 2013, the Veteran reported that he likes the fact that his job at the church allows him to work alone most of the time. He reported transient homicidal and suicidal thoughts, but no actual plan or intent to follow through. In March 2013, the Veteran was afforded an VA examination, at which time the examiner noted that the Veteran continued to drink substantial amounts of alcohol, which was likely to have a significant negative impact on his mood/PTSD symptoms. The examiner found that the Veteran had 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, which is consistent with a 30 percent evaluation under the General Rating Formula. The Veteran reported that he got along with his wife, but she was “ultra-religious,” which caused some disagreements between them. He also indicated that he had one friend, but had little contact with him, and, while he had one living daughter, he did not have contact with her. The Veteran further reported that he avoided crowds. He also noted that he had been working as a salaried custodian for a church for the past eight years. The Veteran reported that he works under the supervision of a board of trustees, who were demanding and very strict, and there were conflicts between the Veteran and the board, but he did not feel that he is in any danger of losing his job. The Veteran reported that he receives a lot of support from female members of the church and is generally well-liked. He also stated that he occasionally helped a friend print T-shirts. The only psychiatric symptom noted was chronic sleep impairment, but the Veteran stated that he kept a knife/club in his car. Upon mental status examination, the Veteran was casually dressed, clean, alert, oriented, pleasant, and cooperative; mood was tired with a full and congruent affect; he had regular speech; no suicidal or homicidal ideation; no active hallucinations, frank delusions, or obsessions; thought process was logical and goal directed; memory, attention, and concentration were grossly intact; and insight and judgment were fair. In a June 2013 VA treatment record, the Veteran reported that he periodically had thoughts of hurting his boss, but he had been able to talk himself out of it. He stated that he had been severely depressed and had not been talking to anyone other than his wife recently. In August 2013, it was noted that the Veteran had some conflict with his wife due to the fact that she was very religious and he had been drinking recently, and, while he had a friend and acquaintance, he did not socialize much anymore. He also stated that he had difficulty dealing with church elders at work due to their demands. At such time, the treatment provider observed that the Veteran’s PTSD symptoms were not as prominent as his depressive symptoms, which included depressed mood, amotivation, anhedonia, irritability, fleeting thoughts of hurting his boss, low self-esteem, and a sense of hopelessness. The Veteran also did not have suicidal or homicidal ideation, or thoughts to harm himself or others. In February 2014, it was noted that the Veteran reported that he had problems at his job at the church. Specifically, his boss was getting loud and pointed with his conversation, and an incident occurred where several church members pulled the Veteran away because it became apparent that he was going to hit the man. A November 2014 VA treatment record noted the Veteran’s reports of anger being more problematic with more depression. He was not suicidal, but was more worried about homicidal thoughts; however, there was no specific target. The clinician noted that the Veteran had PTSD, anxiety, and depression that were all exacerbated by an alcohol relapse at the time. The clinician also assessed the Veteran as having increased anger issues kindled by his PTSD symptoms and some paranoid ideation about those at church with feelings that they were persecuting him. It was also noted that the Veteran, at times, reached the point of anger where he has fleeting homicidal ideation, but no specific target or plan, and his risk of suicidal gesture was low to moderate. In July 2015, the clinician noted that the Veteran’s increased anger issues had tapered with quitting alcohol. The clinician also noted that the Veteran’s risk of suicidal gesture was low to moderate, and he was active in his faith, which kept him more optimistic when calm, but was concerned about an impulsive attempt if stressors became overwhelming. Lastly, the clinician noted that the Veteran had not reported a history of physical violence toward others in recent years, but had passive homicidal ideation that he would continue to monitor closely. In September 2015, the Veteran’s social worker noted that his irritability and anger were getting worse. He was also having problems with his boss at work and had a confrontation with him recently. The Veteran also reported that, for the last couple of months, his speech and mind did not seem to coordinate, and he was having a lot of short-term memory loss. In this regard, the Veteran’s medications indicated that some could cause memory loss and confusion. The Veteran further reported that he had both grandchildren over for the whole summer, which became stressful. The social worker noted that the Veteran had transient homicidal and suicidal thoughts, but no actual plan or intent to follow through. In January 2016, the Veteran continued to have PTSD symptoms, and was anxious and depressed frequently. He stated that sometimes when he tried to talk to people, they could not understand him well. He believed this started when he was so angry at his landlady, who started harassing him and his wife. In July 2016, the Veteran stated that his PTSD had gotten worse and he stayed away from everyone, but his wife. He also reported that, on July 4th, he went home and sat on his couch with his gun in his hand. The Veteran further indicated that a longtime friend had cancer. The social worker noted that the Veteran was oriented in all spheres and had transient homicidal and suicidal thoughts, but no actual plan or intent to follow through. The Veteran was afforded another VA examination in October 2016, at which time the examiner found that he had 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, a finding consistent with a 30 percent evaluation under the General Rating Formula. The Veteran reported that he was “becoming more irritable with wife and grandchildren,” but denied anger outbursts and physical altercations. The Veteran also reported that he did not like to be around people and denied having hobbies, but had contact with one of his siblings. He further stated that two of his friends died over 10 years ago, and he had no desire to make more friends. With regard to his employment, the Veteran reported that he continued to work at the church on a part-time, standby basis, but he was forgetful and had problems with his supervisor. The Veteran’s symptoms included depressed mood, chronic sleep impairment, and disturbances of motivation and mood. He also reported worsening depression, crying spells, intrusive memories of military experiences, intense anxiety once a month with sweating and shortness of breath, feelings of emptiness, anhedonia, avoidance of military related personnel and events, trouble falling asleep, nightmares related to death, feeling detached (even from family), and problems with memory. Upon mental status examination, the examiner noted that the Veteran had good hygiene; was oriented to person, place, date, and situation; was cooperative; had regular speech; had a calm mood with a congruent and appropriate affect; a coherent, logical, linear, and goal oriented thought process; fair insight and judgment; and impulsive control was within normal limits. The Veteran also denied current suicidal and homicidal ideation, plan, and intent. In March 2017, the Veteran reported that he was having ongoing problems with sleep and mood. Additionally, an October 2017 mental health note revealed that the Veteran was well-groomed; had an average demeanor; clear speech; euthymic mood with a full affect; was getting 4-6 hours of sleep; and was not suicidal or homicidal. At the January 2018 Board hearing, the Veteran stated that he had anxiety, panic attacks, which occurred weekly, depression, nightmares, low motivation, and difficulty with sleep. He also testified that all of his friends had died, he could not be around crowds, and occasional contact with some extended family members. The Veteran stated that his wife had to occasionally remind him to shower and he had both short-term and long-term memory loss that impacted his job. With regard to his employment, the Veteran stated that he continued to work at a church as a custodian as he had for 15 years, but had issues with a couple of people on the job. Additionally, he testified that he had mood swings and, when he got irritated, he thought of violence, but it was hard to act on it because he was “old now” and, if he went to jail, he would lose. The Veteran further stated that he was not suicidal, but had homicidal tendencies. Based on the foregoing, in July 2018, the Board denied the Veteran’s claim for a rating in excess of 50 percent for his PTSD. However, in the June 2019 JMR, the parties determined that the Board erred in the July 2018 decision by failing to sufficiently discuss the presence of certain psychiatric symptoms, to include suicidal and homicidal ideation, illogical and obscure speech, neglect of personal hygiene, memory impairment, difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships, when determining whether an increased rating for the Veteran’s PTSD was warranted. However, as noted in the August 2020 Board remand, the record reflected that some of the Veteran’s related impairments may be attributable to a nonservice-connected cognitive disorder. Accordingly, the Board remanded the case in order to afford the Veteran a new VA examination so as to determine, to the extent possible, which psychiatric symptoms are attributable to PTSD and which are attributable to a nonservice-connected cognitive impairment. In the interim, a December 2018 VA treatment record, the Veteran reported struggling with memory problems. He stated that he was mostly concerned about short-term memory, and he had seen a progressive decline. He reported difficulty with remembering names and people, and he stated that he has been forgetting work assignments. In January 2019, a provisional diagnosis of mild cognitive impairment. At a May 2019 VA examination, which was conducted in connection with a separate claim for service connection for dementia, the examiner diagnosed the Veteran with PTSD, which was noted to result in occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating under the General Rating Formula. At such time, it was observed that the Veteran still lived with his wife and worked part-time as a church custodian. The Veteran had symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, and disturbances in motivation and mood. On mental status examination, the Veteran was casually dressed with good hygiene; his thought process was logical and goal oriented; his mood was euthymic with congruent affect; and he denied hallucinations, suicidal ideation, or homicidal ideation. In a contemporaneous opinion, the examiner opined that dementia is unrelated to PTSD as the former is a medical condition is most commonly due to abnormal deposits of protein in the brain that destroy cells in the areas of the brain that control memory and mental functions, while the latter is a psychiatric condition that involves symptoms, to include concentration and memory, following a traumatic incident. In a June 2019 speech pathology consult, the Veteran presented with moderate cognitive deficits in working memory and immediate memory recall. He had mild deficits in sustained, alternating, and divided attention. The clinician observed that the Veteran also demonstrated moderate deficits in language, specifically word finding deficits that can be mistaken as dysfluencies. In December 2019, a diagnosis of mild cognitive impairment was again noted. In a February 2020 statement, the Veteran’s wife reported that the Veteran experienced nightmares, suicidal and homicidal ideation, and mood swings. At a September 2020 VA examination performed in accordance with the August 2020 Board remand, the VA examiner found that, although the Veteran had previously been diagnosed with PTSD, he did not currently report symptoms that meet the diagnostic criteria for such disability; rather, he had a current diagnosis of unspecified anxiety disorder, which was related to or a progression of his previously diagnosed PTSD. The examiner further indicated that the Veteran had a mild cognitive disorder; however, it was possible to differentiate what symptoms are attributable to each diagnosis. In this regard, he reported that the Veteran’s mild cognitive disorder resulted in symptoms related to memory impairment, to include forgetting to go to work, needing to keep calendars and reminders, wife needing to remind him, cannot recall what movies he’s seen or what he did the day before, and cannot remember names, places, where he is going, or what he needs to do. The examiner reported that all remaining symptoms were attributed to the Veteran’s unspecified anxiety disorder. He further indicated that such disability resulted in occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating under the General Rating Formula. At such time, the Veteran reported that he continued to live with his wife of 26 years and worked as a custodian for his church. The examiner indicated that a review of recent VA treatment record reflects complaints of intrusive thoughts, frustration with shoulder pain, difficulty sleeping, and an irritable mood related to his shoulder pain. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and inability to establish and maintain effective relationships. The Veteran also described feeling very anxious on the Fourth of July and in crowds, a deep depression that occurred every couple of months, being a loner, homicidal ideation, nightmares, and irritability with his wife. Upon mental status examination, the Veteran was adequately groomed and casually attired; his verbal responses were logical and coherent; and he had an irritable mood. The examiner indicated that the Veteran was at low risk for suicidal behavior as he has no significant chronic factors, such as a history of inpatient psychiatric admissions or family history of suicide. Additionally, he currently did not demonstrate any acute factors, such as being in any acute emotional distress or crisis, and he denies current or recent suicidal ideation. His main protective factors include his involvement in ongoing medical and mental health care within the VA healthcare system, positive marital relations, and positive occupational functioning. Upon review of the foregoing, and resolving all doubt in favor of the Veteran, the Board finds that his PTSD is manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, thus warranting a 70 percent rating for the entire appeal period. In this regard, the Board is cognizant that the VA examiners have consistently found that such disability results in no more than 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, which is consistent with a 30 percent rating under the General Rating Formula, or occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating under the General Rating Formula. However, the Board finds that the nature, frequency, severity, and duration of his PTSD symptomatology more nearly approximates occupational and social impairment in most areas, thus warranting a 70 percent rating under the General Rating Formula. As an initial matter, the aforementioned VA treatment records and examination reports reflect that the Veteran’s reported symptoms of impairment of memory and speech have been attributed to his nonservice-connected cognitive disorder and, thus, may not be considered in the evaluation of his PTSD. However, as the remaining symptoms and their resulting functional impairment have not been dissociated from the Veteran’s PTSD, they will be considered in the evaluation of such disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). In this regard, the record reflects that the Veteran’s PTSD results in psychiatric symptoms that include, but are not limited to, anxiety, depression, irritability, anger, homicidal and suicidal ideation, chronic sleep impairment, paranoia and suspiciousness, disturbances of motivation and mood, panic attacks that occur weekly or less often, and an inability to establish and maintain effective relationships, which most nearly approximates occupational and social impairment in most areas. However, as such symptomatology does not result in total occupational and social impairment, a rating in excess of 70 percent for such disability is not warranted. In regard to occupational functioning, the record reflects that the Veteran has maintained employment as a custodian for a church throughout the appeal period. Specifically, while he has reported conflict with the board that oversees his position, and has had homicidal thoughts and a near-physical altercation with his boss, he has demonstrated an ability to maintain such employment, albeit with varying hours, for the entire appeal period. Furthermore, he has indicated that he likes that his position allows him to work alone most of the time, he receives a lot of support from female members of the church, and is generally well-liked. As pertinent to social functioning, the record reflects that the Veteran has maintained a relationship with his wife of over two decades throughout the appeal period. In this regard, while he has reported that they essentially live separate lives, have conflict in their relationship, and the September 2020 VA examiner found that his PTSD resulted in an inability to establish and maintain effective relationships, the remainder of the record indicates that he does, in fact, maintain a relationship, while strained, with her and his grandchildren. Furthermore, while a number of his friends have died, the record reflects that he has maintained one distant friendship and another acquaintance, keeps in occasional contact with one of his siblings and distant family members, and continues to attend church. Finally, despite noting that the Veteran’s PTSD resulted in an inability to establish and maintain effective relationships, the September 2020 VA examiner also found that he had positive marital relations and positive occupational functioning. Thus, while the Veteran’s PTSD results in occupational and social impairment in most areas, such is not shown to result in total occupational and social impairment. Furthermore, the record does not demonstrate that the Veteran experiences symptoms indicative of such level of impairment, to include 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. In this regard, while he has homicidal ideation, he has never acted upon such thoughts and has not engaged in physical violence during the appeal period. Furthermore, while it has been reported that the Veteran has neglected his personal hygiene on occasion, such symptomatology has been related to his memory impairment, i.e., he forgets to brush his teeth, shower, etc., which has been attributed to his nonservice-connected cognitive disorder. Thus, a rating in excess of 70 percent for the Veteran’s PTSD is not warranted. In reaching such determination, the Board has carefully considered the Veteran’s and his wife’s reports regarding the nature of his service-connected PTSD and notes that their lay testimony is competent to describe certain symptoms associated with such disabilities. However, the Veteran’s history and reported symptoms have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability rating that has been assigned herein. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence when evaluating the pertinent symptoms of his service-connected PTSD. As such, while the Board accepts the Veteran’s and his spouse’s testimony concerning matters that they are competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluations of functional impairment, symptom severity, and details of clinical features of his service-connected PTSD. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s PTSD; however, finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching the foregoing determinations, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran’s favor, which has resulted in a partial award of a 70 percent rating for his PTSD. However, insofar as the Board has denied a higher rating, the preponderance of the evidence is against such aspects of the Veteran’s claim. Therefore, the benefit of the doubt doctrine is not applicable in such regard and his increased rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.