Citation Nr: 21004283 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-48 511 DATE: January 26, 2021 ORDER Entitlement to an initial rating in excess of 30 percent disabling prior to November 2, 2016 for posttraumatic stress disorder (PTSD) is denied. Entitlement to a rating in excess of 70 percent disabling from November 2, 2016 for PTSD is denied. FINDINGS OF FACT 1. Prior to November 2, 2016, the Veteran's service-connected PTSD did not manifest with flattened effect, abnormal speech, panic attacks, impaired judgment, or difficulty in establishing and maintaining effective work and social relationships; as such, occupational and social impairment with reduced reliability and productivity was not shown. 2. From November 2, 2016, the Veteran's service-connected PTSD has not manifested as persistent danger of self-harm, inappropriate speech, presentation, or behavior, or hallucinations and delusions; as such, total occupational and social impairment has not been shown. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent disabling for PTSD prior to November 2, 2016 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a rating in excess of 70 percent disabling from November 2, 2016 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to November 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by a Department of Veterans Affairs Regional Office (RO). In February 2020, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In a March 2020 decision, the Board remanded the issue to obtain current medical records. Records through October 2020 have been obtained and associated with the claims file. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings 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. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial rating in excess of 30 percent disabling for PTSD prior to November 2, 2016 is denied. 2. Entitlement to a rating in excess of 70 percent disabling for PTSD from November 2, 2016 is denied. The Veteran's service-connected PTSD has been rated pursuant to 38 C.F.R. § 4.130, DC 9411. The Veteran's PTSD is rated as 30 percent disabling prior to November 2, 2016 under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 30 percent rating is assigned for PTSD when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as depressed mood, anxiety, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss. A 50 percent rating is assigned for a psychiatric disorder manifested by 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. The Veteran’s PTSD is rated as 70 percent disabling from November 2, 2016. A 70 percent rating is assigned for a psychiatric disorder manifested by 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), or an inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is assigned for a psychiatric disorder manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process 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, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (2002); Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Turning to the evidence of record, during a July 2012 VA psychiatry visit, the Veteran reported difficulty falling and staying asleep, irritability, and anger outbursts. During the same visit, he also reported that a Veterans’ parade the previous year had triggered a dramatic increase in intrusive memories of Vietnam. The Veteran also reported low energy, low motivation, and feeling isolated and withdrawn. However, he denied suicidal and homicidal tendencies. See April 2014 Medical Treatment Record – Government Facility. During a September 2012 VA primary care visit, Veteran was observed to have a normal attention span and normal memory. See March 2014 CAPRI Record, page 154. In October 2012, the Veteran underwent a Compensation and Pension (C&P) Exam. He reported experiencing recurrent and distressing recollections of Vietnam, efforts to avoid uncomfortable situations, difficulty falling and staying asleep, and feelings of irritation. He also related that he felt guilt, shame, and depression. It was noted that the Veteran had never been married and had no children. He had no long-term relationships, and was not in a relationship at that time. He worked as a sales representative for the same company for 32 years until retiring at age 55 in 2001. The examiner opined that the Veteran’s symptoms were not severe enough to interfere with occupational and social functioning. His symptoms were depressed mood and chronic sleep impairment. The examiner also specifically opined that the Veteran was competent to continue managing his own finances. See October 2012 VA Examination. A former coworker and friend of the Veteran submitted a statement in January 2013. The friend described the Veteran as “on point 24/7.” However, he also described the Veteran as a loner who is uneasy when required to interact socially with others. He said the Veteran had a short-fused temper, with a lot of anger for rules and regulations that did not make sense to him. The friend also noted that the Veteran does not respond well when confronted with the unexpected. See January 2013 Buddy/Lay Statement. During an October 2013 visit with his VA primary care physician, the Veteran was observed to have a normal attention span and normal memory. See March 2014 CAPRI Record, page 73. In November 2013, the Veteran’s VA dermatologist noted that the Veteran appeared well-groomed, was oriented to person and place, and had an appropriate mood. See March 2014 CAPRI Record, page 57. During several VA psychiatric evaluations in February and March of 2014, the Veteran repeatedly denied thoughts of suicide or homicide and denied hallucinations. He was also noted to be oriented to person, place, and time, as well as to be appropriately dressed and cooperative. Further, the Veteran was regularly observed to be capable of normal thought content, process, insight, judgment, and speech. However, he did admit having a poor memory, and that he possessed a small close group of friends, and that most of his social interactions were with family members. See March 2014 CAPRI Record, pages 1, 4, 25, 28, 34. The Veteran reported a slight worsening in concentration in April 2014. See May 2014 Medical Treatment Record – Government Facility. In a May 2014 Disability Benefits Questionnaire, the Veteran reported anxiety, nightmares, intrusive recollections, physiologic reactivity, emotional numbness, restricted affect, sleep problems, exaggerated startle, decreased interest, fatigue, and sadness. Symptoms included depressed mood, anxiety, and chronic sleep impairment. The examiner determined that his level of occupational impairment was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as depressed mood, anxiety, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss. See April 2015 VA Examination. That same month, the Veteran’s brother submitted a statement recalling that the Veteran would avoid family gatherings. His brother also observed that the Veteran’s recollection of the names of past acquaintances had become unusually bad. He also noted that the Veteran had become increasingly irritable over the previous year, and that the Veteran was having difficulty maintaining his thought process. See May 2014 Buddy/Lay Statement. In May 2014, the Veteran himself felt that his memory and concentration were “pretty much shot.” See November 2015 CAPRI Record, page 127. In an April 2015 VA record, the Veteran reported insomnia and nightmares at a frequency of fifteen days out of the month. In August 2015, he reported nightmares once or twice a week. See November 2015 CAPRI Record, pages 29, 58. In April 2016, the Veteran said that he was experiencing better sleep and an improvement in nightmares. See May 2016 CAPRI Record, page 2. The Veteran underwent a VA C&P Exam in November 2, 2016. During the exam, the Veteran noted good relationships with his siblings in that they spoke on the phone and got along with one another. He also revealed that he had not had a romantic relationship in over ten years. Despite his solitude, he reported taking pleasure in gardening and household chores when he felt physically well enough to do so. The examiner noted that the Veteran’s mood, thought, behavior, dress, and hygiene were normal and appropriate. However, the Veteran reported re-experiencing of combat traumas, nightmares, avoidance, negative alterations in cognition and mood, and hyperarousability, despite taking medication. The Veteran also related that any distressing news on television, or explosive noise, would trigger his symptoms. The Veteran denied suicidal ideation, while admitting that he sometimes prayed to God that his time on earth be finished soon. Symptoms included depressed mood, anxiety, suspiciousness, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. The examiner concluded that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. The examiner noted that the Veteran reported a tendency to understate symptoms, while denying any intentional attempts to mislead the examiner. See November 2016 C&P Exam. In a May 2017 VA psychiatric note, the Veteran denied manic or psychotic symptoms, and denied suicidal or homicidal thoughts. He was also observed by the physician to have a normal affect and linear, goal-directed, logical thoughts. See June 2017 CAPRI Record, page 14. During a January 2018 Medicare Annual Wellness Visit, the Veteran denied needing assistance to perform everyday activities such as eating, getting dressed, grooming, bathing, or using the toilet. The Veteran’s short-term memory was also tested and found normal. See October 8, 2020 Medical Treatment Record – Non-Governmental Facility, pages 640, 645. The Veteran’s private physician submitted an opinion in March 2018. The physician opined that the Veteran’s numerous chronic conditions, including PTSD, would be exacerbated by the stress of employment. See March 2018 Third Party Correspondence. Throughout the rest of 2018, the Veteran denied manic or psychotic symptoms, or having suicidal or homicidal thoughts. See July 2020 CAPRI Record, pages 257, 287. His primary care nurse and physician also noted in September of that year that he spoke appropriately and appeared to maintain good hygiene. See October 2018 Medical Treatment Record - Non-Government Facility, pages 79, 82. In May 2019, the Veteran underwent a short-term memory test. Out of 3 items, the Veteran immediately remembered 2. After 5 minutes, the Veteran remembered 0 items. However, a few days later, the Veteran remembered all the items during both testing periods. See October 2, 2020 Medical Treatment Record - Non-Government Facility, pages 11, 73. Also in May 2019, the Veteran underwent a Medicare Annual Wellness Visit, at which he denied needing assistance to perform everyday activities. See October 8, 2020 Medical Treatment Record - Non-Government Facility, page 577. At a December 2019 psychiatry visit, the Veteran denied suicidal thoughts, hallucinations, and perceptual disturbances. See July 2020 CAPRI Record, page 1. In February 2020, the Veteran testified at a hearing before the Board. He endorsed symptoms of sleeplessness and flashbacks when under stress or anxiety. He said he often felt depressed. The Veteran said that he lacked motivation to do anything, a mood he attributed not only to his PTSD, but rather to his whole constellation of medical issues, which includes coronary artery disease, sleep apnea, and narcolepsy. The Veteran retired at age 55 out of fear that his low tolerance for disagreements would result in his termination. The Veteran stated he cannot work, and he cannot stay awake. He also has frequent doctor visits. For the Veteran, all these issues combined sap his motivation to do anything. Additionally, the Veteran reported that crowds make him, while not totally uncomfortable, sensitive to his surroundings. However, the Veteran said that he has friends and that he does periodically go out. See February 2020 Hearing Transcript, pages 8-10. During a May 2020 Medicare Annual Wellness Visit, the Veteran reported that his current medication regimen was adequately controlling his mood. He was observed to be oriented to person, place, and time, and to have intact recent and remote memory. He also denied feeling isolated, or that he needed help from others to perform everyday activities. However, the Veteran reported daytime sleepiness, feeling on edge, irritability, and nonspecific dread. The Veteran admitted that these issues made it somewhat difficult for him to work, take care of things at home, and get along with people. See October 2, 2020 Medical Treatment Record - Non-Government Facility, pages 53, 58, 60, 62, 63, 72, 73, 76, 77. Lastly, in September and October of 2020, the Veteran was observed to have normal attention span and memory, and to have an age-appropriate appearance. The Veteran repeatedly denied having thoughts of suicide. See October 2020 CAPRI Record, pages 31, 40, 102, 214. The Board will first address the period on appeal prior to November 2, 2016. In this regard, and after a review of the evidence of record, the Board finds that an initial rating in excess of 30 percent is not warranted. As noted above, prior to November 2, 2016, the Veteran consistently endorsed depressed mood, anxiety, irritability, overactivity, nightmares, chronic sleep impairment and sleep disturbance, low energy, avoidance, intrusive thoughts and memories, and diminished memory. According to the Veteran’s brother, the Veteran’s memory loss included forgetting the names of past acquaintances. Given the presumed observation window granted to a family member versus a medical professional, the Board finds the brother’s statement on the Veteran’s memory credible. However, the memory loss associated with a 50 percent rating is characterized by, for example, retention of only highly learned material or forgetting to complete tasks. The Board finds that forgetting the names of acquaintances, especially past ones, does not rise to the level of memory impairment contemplated by a higher rating. As for interpersonal relationships, the Veteran’s brother, as well as his friend/former coworker, described the Veteran as person who mostly kept to himself. The friend stated that the Veteran felt uneasy when required to interact socially with others, and the brother reported that the Veteran would regularly avoid family gatherings. However, the Veteran’s self-assessment of his social life was that he had a few close friends and that he had a good relationship with his family. A rating of 50 percent disabling is associated with difficulty in establishing and maintaining effective work and social relationships. While the Board finds the observations of the Veteran’s brother and his friend/coworker credible, the Board does not presume to evaluate the quality of social relationships based on a quantity of friends or interactions. Noting that the Veteran has a close circle of friends and family and seems to enjoy interacting with his family over the phone, the Board does not find that the social aspect of the Veteran’s life during this period warrants a higher rating. The Board also notes that throughout the entire period on appeal, the Veteran was regularly assessed by medical professionals to have normal speech, behavior, grooming, orientation, thought, and memory, and also that while the Veteran reported feeling anxiety and nervousness, he never reported an acute event such as a panic attack. The Board acknowledges the Veteran’s statement during his November 2016 C&P Exam, in which the Veteran self-reported a tendency to understate symptoms. However, the Veteran also denied ever misleading a medical examiner. As such, for the period prior to November 2, 2016, the Board finds that a higher 50 percent rating is not warranted. The Board now turns to the period on appeal from November 2, 2016. In this regard, and after a review of the evidence of record, the Board finds that a rating in excess of 70 percent is not warranted. (Continued on the next page)   As stated above, a 100 percent rating is assigned for a psychiatric disorder manifested by total occupational and social impairment. Again, the Board notes that throughout the period on appeal, the Veteran was regularly observed by medical professionals to have normal speech, behavior, grooming, orientation, thought, and memory. Throughout the record, the exception to this was a May 2019 short-term memory test in which the Veteran did not score well; however, the Veteran achieved a normal score a few days later. The Veteran has also consistently denied hallucinations and delusions and has denied suicidal or homicidal ideation. The Veteran has also repeatedly maintained that he does not require assistance in completing everyday tasks. While the Veteran’s brother reports that the Veteran has a bad memory for recalling the names of past acquaintances, the Veteran has never been observed to forget his own name, the names of close family, or his occupational history. Therefore, the Board finds that the Veteran’s disability picture from November 2, 2016 more nearly resembles a psychiatric disorder manifested by occupational and social impairment with deficiencies in most areas. However, total social and occupational impairment has not been demonstrated. Thus, the Board finds that, absent evidence of symptoms more nearly approximating total occupational and social impairment, a higher 100 percent disability rating is not warranted. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Slomka, Attorney-Advisor 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.