Citation Nr: 21004909 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-25 432A DATE: January 28, 2021 ORDER An initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD), for the period prior to February 7, 2020 is granted. An initial rating in excess of 30 percent for PTSD for the period from February 7, 2020, is denied. FINDINGS OF FACT 1. Prior to February 7, 2020, the Veteran’s symptoms of PTSD more nearly approximate occupational and social impairment with deficiencies in most areas; symptoms resulting in total occupational and social impairment are not demonstrated at any time during the period on appeal. 2. From February 7, 2020, the Veteran’s symptoms of PTSD are consistent with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; symptoms resulting in occupational and social impairment with reduced reliability and productivity were not demonstrated during this period. CONCLUSIONS OF LAW 1. Prior to February 7, 2020, the criteria for an initial 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). 2. From February 7, 2020, the criteria for a rating in excess of 30 percent 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 (DC) 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1996 to March 2003, from August 2003 to November 2003, from February 2004 to May 2005, and from April 2009 to June 2010. The Veteran was awarded the Combat Action Badge. This matter comes before the Board of Veteran’s Appeals (the Board) on appeal from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for anxiety disorder, not otherwise specified (claimed as PTSD), and assigned an initial 30 percent rating, effective October 2, 2012. In a January 2014 rating decision, service connection for PTSD was granted, effective May 9, 2013, and the previously characterized anxiety disorder was recharacterized and inclusive in the PTSD disability, rated as 30 percent disabling. In May 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A copy of the hearing transcript is of record. The Board remanded this matter in February 2018 and January 2020 for further development. As the actions specified in the prior remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board notes that it previously remanded claims for entitlement to service connection for a right knee and a left knee disability for additional development. In a September 2020 rating decision, service connection for left knee grade II chondromalacia and service connection for right knee medial and lateral hypertrophic parapatellar plica and chondromalacia was granted, along with service connection for left and right knee surgical scars. As this is a full grant of the benefit sought as to these issues, they are no longer on appeal before the Board. Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. As the Veteran has not advanced any procedural arguments in relation to VA's duties to notify and assist, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to an increased rating for PTSD The Veteran seeks an initial increased rating for his service-connected PTSD, which is rated 30 percent disabling from May 9, 2013. 38 C.F.R. § 4.130, DC 9411. Throughout the period on appeal, the Veteran has generally asserted that his psychiatric disability is worse than currently rated. The Veteran testified in May 2017 as to the type, severity, and frequency of his PTSD symptoms. In June 2017, the Veteran’s wife submitted a lay statement as to the type and severity of symptoms that the Veteran suffers. These statements are competent, and there is no evidence that the Veteran or his wife are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When evaluating a mental disorder, the rating agency shall 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; see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the time of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation based solely on social impairment. Id. Diagnostic Codes 9201 through 9440 are rated using the General Rating Formula for Mental Disorders (General Formula). Under the General 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 generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and/or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for 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/or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. The Board notes that the Diagnostic and Statistical Manual, Fourth Edition, allowed for the assignment of Global Assessment of Functioning (GAF) scores, which are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. However, VA regulations were amended to adopt the Diagnostic and Statistical Manual, Fifth Edition (DSM-5), which eliminated the use of GAF scores for evaluating mental illness. 80 Fed. Reg. 14,308 (Mar. 19, 2015). As GAF scores are no longer held to be an effective method of evaluating the severity of psychiatric disabilities, the Board will not rely on any GAF scores in adjudicating the present claim. Golden v. Shulkin, 29 Vet. App. 221, 22426 (2018). The Veteran underwent VA examinations in November 2012, June 2015, and February 2020. In the November 2012 exam, the Veteran reported thinking about his traumatic experiences daily and driving his work truck as though he was driving in Iraq. The Veteran described these experiences as the “thousand-yard stare.” The Veteran reported these episodes as brief from which he recovers within a few minutes. The Veteran reported nightly sleep disturbances including dreams of explosions and waking up in a cold sweat from these dreams. The Veteran further reported that he has struck his wife in the past when she woke him, with no recollection of doing so. The Veteran also reported hallucinating when holiday shopping with his wife (seeing buildings that were in Iraq). He reported similar occurrences 3-4 times that year and that his wife was able to calm him down after a few minutes. Similarly, the Veteran recalled an incident where he “blacked out for 15 minutes and saw body parts.” The Veteran reported hypervigilance and feeling on edge when very stressed which usually happens in large crowds or during a flashback. The examiner noted symptoms of depressed mood, suspiciousness, and chronic sleep impairment. Overall, the examiner noted that the Veteran’s symptoms are not severe enough to interfere with occupational and social functioning or to require continuous medication. In May 2013, the RO obtained a file review only medical opinion. The examiner reviewed the Veteran’s claims file, to include the November 2012 exam opinion, and diagnosed the Veteran with PTSD. The examiner recorded symptoms of depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The examiner did not note any indications of persistent delusions or hallucinations, or memory loss. Overall, the examiner noted that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. In June 2015, the Veteran reported that he was currently married and had three daughters. The Veteran reported having sessions with a counselor from the Vet Center but stated that those services had not been offered for the prior 6-7 months. The Veteran reported those sessions as helpful. The Veteran denied any legal or behavioral history since his last exam. The Veteran reported that his relationship with his spouse and children have both improved as a result of those sessions as well as him being able to communicate with his spouse better. The Veteran reported trouble sleeping and occasional nightmares, with shortness of breath and palpitations when experiencing flashbacks or encounters which remind the Veteran of his traumatic experiences. The Veteran reported significant hypervigilance and reacting as if he were in a combat situation when faced with loud, quick noises. The Veteran reported considering suicide daily but denied plan or intent. The Veteran also denied prior suicide attempts. The examiner recorded the Veteran’s hygiene as fair, his affect as bright, and the Veteran’s insight and judgment as fair. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and suicidal ideation. Overall, the examiner noted that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. During the May 2017 Board hearing, the Veteran testified that he has nightmares, fits of rage, and short and long-term memory impairment. The Veteran testified to one occasion where his wife attempted to wake him by shaking his shoulder, and to waking up in a “straight fit of rage,” before realizing who his wife was. The Veteran also testified to experiencing fits of rage when driving, giving an example of when “someone cuts you off in traffic.” The Veteran testified to difficulties remembering day-to-day tasks and having to write things down so that he can refer to them. Regarding long-term memory loss, the Veteran testified that as far as a lot of his close friends, he doesn’t even “really remember who they are.” In a June 2017 statement, the Veteran’s wife wrote that he experiences “night terrors,” and to hearing the Veteran “whimpering in his sleep,” a couple of weeks prior. The Veteran’s wife wrote that the Veteran has hit her a couple of times in his sleep, and on occasion knocked his lamp off the stand. She wrote that she does not attempt to wake the Veteran from nightmares “because he comes up swinging every time.” The Veteran’s wife wrote that every time the Veteran hears “a loud unexpected noise he jumps.” A friend’s 12-year-old daughter also attempted to wake the Veteran on two occasions and was “hit” by the Veteran both times. She provided the following examples of events that elicited this type of reaction from the Veteran: the sound of the first grenade going off at a grenade range, pyrotechnics going off at a 2010 rodeo, and when she drops something or makes a loud banging type noise. A February 7, 2020 VA examination report notes that the Veteran reported that he was currently working 65-70 hours a week as a truck driver and that he was having no difficulties at work. The Veteran reported continuing to have a temper, and angry outbursts that he tries to keep in check with family members. The Veteran reported being successful in calming himself down in relatively short order. The Veteran denied current medications or mental health treatment for PTSD. The Veteran described having good support from his wife and that he does not see the need for professional services at this time. The Veteran reported feeling anxious about “normal dad things.” He reported his sleep as “pretty decent,” and denied any problems related to motivation, concentration, or energy. The Veteran reported mood and appetite as good. The Veteran denied experiencing distress related to previous wartime stressors on a frequent basis. The Veteran reported no interference with daily functioning. The Veteran reported occasional irritability and a heightened startle reflex. The examiner noted that while the Veteran initially reported frequent suicidal ideations, the Veteran clarified that he last thought of suicide 6 years ago. The Veteran did not report any legal or behavioral history. The examiner observed the Veteran’s appearance as disheveled, his affect as bright, and mood as elevated. The examiner further observed the Veteran’s thought content as appropriate, and his thought process as logical and goal oriented. The examiner noted no unusual behaviors or mannerisms. Overall, the examiner opined that the Veteran does not meet the diagnostic criteria for PTSD and that the Veteran is presently functioning within the normal range in all spheres of life, including occupational and relational functioning. The examiner observed no readily apparent symptoms, functional impairment, or personal distress. The examiner noted that while the Veteran reported feeling “constantly” depressed and anxious, that the meaning of those statements was unclear. The examiner concluded that the Veteran was unable to provide examples that would rise to the level of clinically significant symptoms as opposed to expected reactions to normal stressors. There is no evidence that the above examiners were either not competent or credible. Further, all examiners based their assessments of the Veteran's PTSD on the Veteran's own account of his symptoms and their own objective psychiatric evaluations. As such, the Board finds that each examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Aside from the November 2012, June 2015 and February 2020 VA examinations, and the May 2013 medical opinion, the Board notes that there is no other medical evidence of record, either before or during the course of the appeal, documenting ongoing treatment for the Veteran’s PTSD. 1. A rating of 70 percent prior to February 7, 2020, but no higher, for PTSD, is granted. Prior to February 7, 2020, the evidence of record demonstrated that the symptoms associated with the Veteran’s PTSD most closely approximated the type of symptoms contemplated by the criteria consistent with 70 percent disability rating. In this regard, the Veteran was noted to have anxiety, depression, suspiciousness, sleep disturbances, hallucinations, mild memory loss, suicidal ideation, anger/irritability, hypervigilance, problems with concentration, exaggerated startle response. During this timeframe, the Veteran had periods of daily thoughts of suicidal ideation. The June 2015 examiner noted the Veteran’s hygiene, and his insight and judgment as “fair.” Accordingly, the severity, frequency, and duration of the Veteran’s PTSD symptoms prior to February 7, 2020 are consistent with a 70 percent disability rating. However, a higher rating of 100 percent is not warranted as the Veteran does not have the type of symptoms that warrant this rating, nor the level of impairment required. The Veteran does not present with symptoms such as gross impairment in thought process or communication, 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, or memory loss for names of close relatives, own occupation, or own name. As such, the record does not show total occupational and social impairment as required for the 100 percent schedular rating. 2. A rating in excess of 30 percent from February 7, 2020, for PTSD, is denied. Based on a review of the evidence of record for the period beginning on the date of the February 7, 2020 VA examination, the Veteran’s PTSD symptoms demonstrated a dramatic change, and the Board finds that a rating of 30 percent is more closely approximated from that date. The February 7, 2020 VA examination demonstrates that the frequency, severity, and duration of the Veteran’s PTSD symptoms, to include feelings of anxiety and some irritability do not cause reduced reliability and productivity. The evidence does not show that these symptoms impair his ability to be productive at home. He was independent in his activities of daily living, competent to manage his funds, and did not require assistance for tasks due to his psychiatric symptoms. Additionally, his symptoms, to include any disturbances of motivation and mood did not impair his ability to be reliable, that is, to be trusted or perform consistently well with his family or employment. The Veteran reported his suicidal thoughts were over six years ago. While he was seen this one occasion as being disheveled, this doesn’t demonstrate that the totality of the disability picture is anything more severe than that contemplated by the rating criteria warranted by a 30 percent rating. Significantly, the competent evidence of record for the period from February 7, 2020 does not demonstrate that the Veteran's PTSD symptoms produced occupational and social impairment with reduced reliability and productivity. During the February 2020 VA exam, the examiner noted the Veteran had exaggerated startle response and occasional irritability, but did not find that the Veteran had 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, impaired judgment, impaired abstract thinking, or disturbances of motivation and mood, or more severe symptomatology such as to warrant at least the next higher 50 percent rating. In fact, the examiner found the Veteran to be presently functioning within the normal range in all spheres of life, noting the Veteran’s satisfying relationships and successful employment. Thus, the overall disability picture represented by the symptoms reported for the period from February 7, 2020 approximated those of a 30 percent, but no higher rating. Bowling v. Principi, 15 Vet. App. 1 (2001); Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013) (50 percent rating requires sufficient symptoms of the kind listed in the 50 percent requirements, or others of similar severity, frequency, or duration, that cause occupational and social impairment with occupational and social impairment with reduced reliability and productivity such as enumerated in the regulation). Conclusion The Board finds that the criteria for an initial 70 percent rating, but not higher, for PTSD for the period before February 7, 2020 are met. However, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 70 percent for the period prior to February 7, 2020 is warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Further, for the reasons stated above, the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for the period from February 7, 2020. All potentially applicable diagnostic codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). (Continued on the next page)   (Continued on the next page) LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gates 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.