Citation Nr: 21003321 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-61 066 DATE: January 21, 2021 ORDER Entitlement to an initial disability rating of 70 percent, but not higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The severity, frequency, and duration of the Veteran’s PTSD symptoms result in occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating of 70 percent, but not higher, for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to July 1971. For his service, the Veteran was awarded the Purple Heart, Vietnam Service Medal, and Republic of Vietnam Campaign Medal with Device 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision. In December 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. The Veteran’s claim for an increased rating was remanded by the Board in January 2020 for further development. Entitlement to an initial disability rating of 70 percent, but not higher, for PTSD is granted. The Veteran maintains that the severity of his service-connected PTSD requires an initial disability rating in excess of 50 percent. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, 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. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. See 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not “duplicative or overlapping with the symptomatology” of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 126. Under the General Rating Formula, a 50 percent disability rating requires: 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 disability rating requires: 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 disability rating requires: 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. The symptoms associated with each evaluation under the General Rating Formula for Mental Disorders do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the revised (post-1996) General Rating Formula for Mental Disorders. See id. If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, 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. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (noting that the “frequency, severity, and duration” of a veteran’s symptoms “play an important role” in determining the disability level). The severity of the symptoms and the degree of occupational and social impairment they cause are independent factors. See Vazquez-Claudio, 713 F.3d at 116 (rejecting an interpretation of § 4.130 that would allow “a veteran whose symptoms correspond[ed] exactly to a 30 percent rating” to be granted a 70-percent rating solely because they affected most areas). In other words, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. See id. at 118 (holding that, in determining whether a 70 percent rating is warranted, VA must make “an initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas”). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran’s service-connected PTSD has been rated as 50 percent disabling for the entire appellate period under 38 C.F.R. § 4.130, Diagnostic Code 9411. Almost all mental health disorders, including PTSD, are evaluated under the General Rating Formula for Mental Disorders (Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9411. To evaluate the severity of the Veteran’s PTSD, he was afforded several examinations. The Veteran was provided with a VA Initial Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire in January 2014. The examination report indicates that the Veteran has a diagnosis of PTSD. The Veteran has 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 regarding his PTSD. Concerning his social history, the Veteran is in a three-year dating relationship and described their relationship as supportive and caring. The Veteran has a social circle that includes at least two to three other veterans. He attends Masonic lodge meetings and sporting events on a regular basis, and he has good relationships with his three adult daughters. The Veteran was forced to medically retire from his profession in 1988 reportedly due to flashbacks and physical symptoms related to his reflex sympathetic dystrophy syndrome, he denied a history of job terminations, and he stated that he supports himself with VA pension and benefits. The January 2014 examination report states that the Veteran has nightmares, night sweats, frequent waking, flashbacks, avoidance of major responsibilities that may trigger a flashback, avoidance of situations where loud noises are present, angry outbursts, and exaggerated startle response. He denied thoughts of harming himself or others. The symptoms associated with the Veteran’s PTSD are noted as depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a work-like setting, and an inability to establish and maintain effective relationships. The Veteran presented with good hygiene, and was dressed casually. He was easily engaged, verbally responsive, and cooperative with the examination process. He did not have delusional or psychotic thinking, and he denied a history of suicidal or homicidal ideation. The Veteran was also provided a February 2020 Review Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire. The Veteran has 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 regarding his PTSD. The Veteran lives with his youngest daughter and his significant other. The Veteran described a “good” relationship with his significant other, but she sleeps in a separate room due to his nightmares. He has a “fine” relationship with his three daughters and close relationships with his nieces and nephews. He spends time interacting with his dog, reading the Bible and newspapers, cooking, and listening to music. The Veteran has become more socially isolated and has withdrawn from leadership roles within his social organization, the Free Masons, although he occasionally attends meetings. The February 2020 examination report provides that the Veteran indicated that he is not participating in mental health treatment because he does not believe in it. He has difficulty sleeping, nightmares, and recurrent intrusive memories. He also has become increasingly socially isolated as he is fearful of having flashbacks. He is often irritable and is excessively watchful in public meetings and has a strong startle response to loud noises. He denied suicidal or homicidal ideation and denied symptoms of psychosis. The Veteran has symptoms of anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work-like setting as symptoms that apply to his PTSD. Lastly, the Veteran was afforded a March 2020 Review Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire. The Veteran has occupational and social impairment with reduced reliability and productivity regarding his PTSD. The Veteran stated that he lives with his girlfriend and his adult daughter. He described his relationships with them as “great.” He also reported that he has isolated himself for the past three years and advised that he was involved with the Free Masons until he had an intense flashback while giving a speech and felt embarrassed. He also indicated that he was involved with martial arts for most of his life, but stopped after he became intensely angry at a student for no reason. He stays to himself to avoid having outbursts in public. In terms of relevant mental history, March 2020 examination report states that the Veteran believes his increased pain in his hand causes increased PTSD symptoms. He reported that he will snap at people, and has increased flashbacks. The Veteran’s girlfriend sleeps in a different room and checks on him when she hears him talking in his sleep. The Veteran did not endorse suicidal ideation, plan, or intent. The symptoms of depressed mood, anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting apply to the Veteran’s PTSD. The Veteran was appropriately dressed and groomed, his mood was euthymic, and his affect was appropriate. His thought processes were logical and goal-directed, and his speech was within normal limits. He denied hallucinations and he also denied suicidal and homicidal ideation, plan, and intent. The March 2020 examination report states that the Veteran reported that he is intensely afraid of acting out in public and being embarrassed or having legal consequences. The Veteran worries about how his image and reputation would be impacted if he exhibited symptoms of mental health issues in public. The examiner indicated that although the Veteran is not endorsing a high number of severe symptoms, it is noteworthy that he is managing his symptoms by drastically reducing his normal activities. He stopped attending church even though faith is very important to him, he is no longer involved in martial arts, and he has limited his involvement in the Free Masons. He rarely leaves his home in order to control his symptoms and prevent embarrassing or potentially dangerous situations in public, which represents a significant change in his behavior and indicates a higher level of impairment than his endorsed symptoms suggest. The Veteran’s VA treatment records also describe the severity of his PTSD. Generally, the Veteran’s treatment records do not show evidence of delusions or hallucinations and he consistently denied suicidal and homicidal ideations and suicidal thoughts or intent to harm himself. The Veteran’s mental health examination shown on the August 2014 VA Mental Health—Psychiatry Note indicates that he was casually dressed and did not appear in any acute distress. He was alert, oriented, and cooperative throughout the session. The Veteran’s speech was normal, he did not have any abnormal movements, his affect was restricted, and his mood was anxious and angry. The Veteran’s thought process was coherent, and his attention, concentration, and memory were fair. The Veteran’s insight and judgment were also noted as fair. The December 2014 VA Mental Health—Psychiatry Note states that the Veteran reported difficulty sleeping and avoidance of social gatherings. The corresponding mental health examination indicates that the Veteran was casually dressed and did not appear in any acute distress. He was alert, oriented, and cooperative throughout the session. The Veteran’s speech was normal, he did not have any abnormal movements, his affect was restricted, and his mood was anxious. The Veteran’s thought process was coherent, and his attention, concentration, and memory were fair. The Veteran’s insight and judgement were also noted as fair. The August 2015 VA Mental Health—Psychiatry Note indicates that the Veteran is not currently depressed and does not have mania. He has depressive episodes, which he deals with through distraction. The Veteran has nightmares and on a good day he achieves 8 hours of sleep. The Veteran feels his concentration is good on most days unless he is having a bad day. He tends to be short-tempered, normally not physically aggressive, but he can be verbally aggressive. The Veteran has pretty good energy and he has interest in cooking, walking his dog, and cleaning around his house. He is not overtly psychotic. While the Veteran still has the core symptoms of PTSD, there is no increase in symptoms, and he is not interested in more intense therapy because he prefers talking to other veterans as part of his therapy. The corresponding August 2015 mental health examination provides that he was casually dressed and did not appear in any acute distress. He was alert and oriented in all three spheres. The Veteran described his mood as alright, his affect congruent with mood, and his speech was normal, but verbose. His thought process was coherent, and at times circumstantial. The Veteran’s memory was normal, judgment was fair, and his insight was intact and fair. VA treatment records from 2017 indicate that the Veteran states that he does not need VA mental health treatment, that he is doing well and that if this changes, he will notify VA. An April 2018 VA treatment record shows a negative PTSD screening test as he indicated that he was not constantly on guard, watchful, or easily startled and he also provided that he did not feel numb or detached from others, activities, or his surroundings. VA treatment records from 2018 and 2019 indicate that the Veteran is not taking medication for his PTSD, he does not have homicidal or suicidal ideation, and he does not need VA mental health treatment. The Veteran’s claims folder also contains lay evidence describing the severity of his PTSD. During the December 2019 hearing, the Veteran stated that hat he had to stop working because of his PTSD. In social gatherings, the Veteran prefers to be near the door because he does not enjoy being in crowds. He is easily irritated and that sometimes he would rather isolate himself from others. The Veteran indicated that he has memory loss, trouble sleeping because of his nightmares, and he has mood swings that negatively impact his social relationships. The Veteran stated that his PTSD symptoms have worsened since his last examination. He did not endorse suicidal thoughts or ideation, but indicated that he has anger and rage, particularly with strangers. Based on the above evidence, the Board finds that an initial disability rating of 70 percent is warranted for the Veteran’s PTSD as his symptoms are equivalent in severity, frequency, and duration to the symptoms corresponding to a 70 percent rating. For example, the July 2014 VA examiner indicated that the Veteran’s PTSD was manifested by difficulty in adapting to stressful circumstances, including work or a work-like setting, and an inability to establish and maintain effective relationships. The Veteran also described impaired impulse control. He reported having an angry outbursts towards a teller in a grocery store recently when she refused to stop "popping gum" after he asked her to do so. Further, he reported having other angry outbursts, and later, difficulty recalling what caused the incidents. His VA treatment records reflect that he stated that his PTSD causes irritability, anger and rage. In addition, the evidence indicates that the Veteran’s PTSD symptoms have produced occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran has reported mood swings and his judgment has been described as only fair. Although he is retired, he was involved with the Free Masons until he had an intense flashback while giving a speech and felt embarrassed. He was also involved with martial arts for most of his life, but stopped after he became intensely angry at a student for no reason. The Veteran stays to himself to avoid having outbursts in public. The February 2020 VA examiner noted that the Veteran had become more socially isolated and had withdrawn from leadership roles within his social organization. Of note, the March 2020 VA examiner stated that although the Veteran was not endorsing a high number of severe symptoms, it was noteworthy that he was managing his symptoms by drastically reducing his normal activities. He stopped attending church even though faith is very important to him, was longer involved in martial arts, and he had limited his involvement in the Free Masons. The examiner stated that the Veteran rarely leaves his home in order to control his symptoms and prevent embarrassing or potentially dangerous situations in public, which represents a significant change in his behavior and indicates a higher level of impairment than his endorsed symptoms suggest. As such, the Board finds that the criteria for a 70 percent rating for the Veteran’s PTSD have been met. However, the criteria for a 100 percent rating for PTSD have not been met as the Veteran’s symptoms have not produced total occupational and social impairment. To the contrary, the Veteran reported on VA examination in January 2014 that he had good relationships with his three adult daughters, had a social circle that includes at least two to three other veterans, and had a caring and supportive relationship with his girlfriend of three years. He attended Masonic lodge meetings and sporting events on a regular basis. The February 2020 examination report indicates that the Veteran has a “good” relationship with his significant other, a “fine” relationship with his three daughters, and close relationships with his nieces and nephews. The March 2020 examination report states that the Veteran describes his relationship with his girlfriend and daughter as “great.” Accordingly, in light of the foregoing, the Board finds that the evidence does not demonstrate that the Veteran’s PTSD symptoms produce total occupational and social impairment. As such, a disability rating in excess of 70 percent is not warranted. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision for him in this matter. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.