Citation Nr: 21061476 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-47 709 DATE: October 4, 2021 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's PTSD more nearly approximated the criteria for a 50 percent rating with reduced reliability and productivity, but not occupational or social impairment in most areas or total impairment. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the U.S. Navy from November 1970 to November 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which granted service connection for PTSD and assigned a 50 percent rating effective March 9, 2017. In a June 2017 Decision Review Officer (DRO) decision, the AOJ recharacterized the Veteran's psychiatric condition as PTSD, to include persistent depressive disorder. This matter was previously before the Board in August 2019 and was remanded for development. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). I. Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to an Increased Disability Rating for PTSD For the entire period on appeal, the Veteran is in receipt of a 50 percent disability rating for PTSD effective March 9, 2017, under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula, a 50 percent rating is assigned when a veteran's psychiatric disability causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent evaluation is warranted when 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; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. The maximum schedular rating of 100 percent is warranted when 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; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all 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. Id. However, 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 on the basis of social impairment. 38 C.F.R. § 4.126 (b). Symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Id. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. Id. Factual Background Turning to the evidence, the Veteran maintains that his psychiatric disability is more severe than has been assessed. However, after a thorough review of the record, the Board finds that a rating higher than 50 percent is not warranted. The record reveals that the Veteran has engaged in frequent and consistent mental health treatment since undergoing an initial intake in June 2017. At that time, the Veteran expressed concern about ongoing anxiety, depressed mood, PTSD symptom disturbances, impaired sleep, and difficulty with relationships. The Veteran reported that he has been married for 46 years and lives with his wife in their home. However, he indicated that she says he is not the same person she originally knew. He indicated that he does not travel very much and that his volunteer work with union retirees causes additional stress. Specifically, he reported that he experiences agitation on a monthly basis in connection with reporting to the group. Other activities reported by the Veteran included taking walks with his wife and playing the guitar. On examination, the Veteran presented with pressured speech and an anxious mood/affect. Otherwise, his mental status was normal with orientation to time, place, and person, good grooming, normal psychomotor activity, intact immediate and remote memory, intact attention span and concentration, and good insight and judgment. The Veteran also denied any suicidal or homicidal ideation. Overall, the counselor noted that the Veteran did a fine job at reviewing his history and concerns. In August 2017, the Veteran returned for follow up and reported that his symptoms have increased substantially since going into retirement. He elaborated that he currently serves as a Eucharist minister, but he has migraines after every service due to stress. He also reported two recent shutdowns when trying to socialize with friends and his siblings. Additionally, the Veteran reported having nightmares and flashbacks relating to service and indicated that he is irritable for an entire day after having a nightmare. Throughout 2017, the Veteran's mental status remained unchanged in his counseling sessions. He reported improved connectedness with his wife and improved sleep during these sessions. However, he continued to have nightmares about his service in Vietnam. In November 2017, he reported having a flashback on Veteran's day and having a lot of ups and downs throughout the month. In other visits, he reported being triggered by the news and a crowd at a public pool. The Veteran's mental status remained unchanged throughout 2018 except he consistently presented with some impairment of psychomotor activity. In counseling sessions, he complained of having a few episodes of depression and low mood a week. He reported that these episodes sometimes occurred the day after he had a nightmare. Additionally, he reported that his startle response had gotten worse during a visit in April 2018 and indicated that he was very jumpy. In other visits, he indicated that he continues to incorporate wellness activities into his routines and that he has had some improvement with sleep. He also reported that he maintains flower beds around his house as a wellness tool, but he indicated that securing them can be stressful. In December 2018, the Veteran saw a new counselor and reported that he has unresolved stress from his daughter's death at the age of 10, which he believed to be related to his exposure to Agent Orange. The Veteran further reported that he experiences PTSD triggers without warning or sense. He also reported that he was retraumatized last summer after a session and indicated that he fell into a depression. The Veteran was seen less frequently throughout 2019 in telemedicine services. His counselor noted that he was in stable condition in April 2019 and the Veteran reported having some anxiety related to an upcoming knee replacement in June 2019. However, the Veteran expressed his dissatisfaction with telemedicine and returned to in person counseling in November 2019. At this time, he reported having continued anxiety, nervousness, worry, and crowd avoidance. He indicated that he stays at home most of the time and has difficulty being social. He also reported that his symptoms did remit to some extent during his first course of treatment, but they have returned to pretreatment levels. On examination, he presented with a dysthymic mood. Otherwise, his mental status was normal with orientation to time, place, and person, good eye contact, cooperative behavior, full and appropriate affect, and no psychomotor impairment. His thought process was goal oriented and logical with no signs of delusions, hallucinations, or other psychotic symptoms. He denied suicidal or homicidal ideation. His memory, focus, and concentration were intact. Throughout 2019 and 2020, the Veteran reported anxiety around situational stressors such as the holidays, the Covid-19 pandemic, and his pending increased rating claim for PTSD. Notably, the Veteran reported that his anxiety worsened during the pandemic, which caused an increase in the frequency and intensity of his migraines. During a visit in March 2020, he reported that he has anxiety daily, but he noted that he is gaining a mastery on working through it. At that time, he shared examples of challenging himself to be in anxiety provoking situations. He also reported that he is more aware of his emotional states and intentionality of heading off bad moods. In June 2020, the Veteran returned for counseling and reported that things had been okay. He indicated that he continues to have a lot of fear related to the pandemic and reported that he misses his volunteer work at a local museum and going out to eat. However, he did note that he was able to see each of his children briefly. The Veteran's mental status remained mostly unchanged throughout 2019 and 2020. He presented in some visits with mildly anxious and dysthymic moods, but in several others with a euthymic mood. Otherwise, his mental status was normal with orientation to time, place, and person. He was engaged and responsive to questions. His thought process was reality based, coherent, and he did not show signs of hallucinations or delusions. He also did not express any strong indication of risk of harm to self or others. In addition to this treatment, the record reveals that the Veteran was evaluated by VA examiners in April 2017 and January 2020 to assess the nature and severity of his PTSD. In April 2017, the Veteran reported to a VA examiner that he was not in counseling or taking medication. The examiner provided a diagnosis of PTSD and persistent depressive disorder with mixed features and she concluded that it is possible to differentiate what symptoms are attributable to each diagnosis. Specifically, she attributed symptoms of chronic depression with anxiety to the Veteran's depressive disorder and symptoms of reexperiencing, avoidance, hyperarousal and negative alterations in mood to the Veteran's PTSD. Additionally, the examiner noted presence of the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, and difficulty in adapting to stressful circumstances, including work or a work-like setting. During the examination, the Veteran was cooperative and pleasant. He exhibited good eye contact and was neatly dressed. His mood was fair with a constricted affect, and he appeared on the verge of tears at time. His thought flow was linear, coherent and goal directed without evidence of suicide or homicidal tendencies/ideation. His cognition appeared intact, and he was a reliable historian. With regard to his social functioning, the Veteran indicated that has been married for 46 years and described his relationship as solid. He has two living children and reported that he has good relationships with them and his grandchildren. He reported that he maintains friendships at the gym and goes out to eat with friends. He belongs to the American Legion and VFW, but he reported that he does not attend meetings. However, he did indicate that he stays active within committees for UPS pension, and he volunteers at the National River Aquarium by doing data entry for five hours a week. For leisure, he reported that he reads, plays guitar, sits in the sunroom, talks, watches television, and works on the computer. From this evidence, the examiner concluded that the Veteran has occupational and social impairment due to mild or transient symptoms, which decreases work efficiency and ability to perform occupational tasks only during periods of significant stress; or the symptoms are controlled by medication. The examiner elaborated that the Veteran's PTSD causes 50 percent of his impairment and his depression causes the other 50 percent. In January 2020, a VA examiner also provided a diagnosis of PTSD and persistent depressive disorder. However, this examiner concluded that it is not possible to differentiate what symptoms are attributable to each diagnosis. The examiner noted presence of the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. During the examination, the Veteran exhibited an appropriate level of engagement. He exhibited a depressed and/or anxious mood, dependent upon the topic of conversation. His memory was not impaired, and he did not display and evidence of a formal thought disorder such as delusional thoughts, bizarre thinking, or auditory/visual hallucinations. His speech, voice quality, articulation, production, and rate all appeared to be within normal limits. However, the Veteran reported an increase of depression over the last two months and indicated that both his wife and daughter have pointed out that it is getting worse infrequency and intensity. He also reported having panic attacks that typically occur when he is at the "center of attention," such as when he does the Eucharist at church. On a scale from 0 to 10, he classified his depression at a level 7 or 8 over the past two months. He classified his anxiety at a level 10 over the past week, relating it to managing the logistics for the VA examination. The Veteran also reported increased sleep difficulties since his last examination, stating that he has trouble staying asleep and wakes up earlier than intended two to three times a week due to thoughts of his active service. The Veteran also reported that he has been much more isolative since his last examination and only spends time with his family. From this evidence, the examiner concluded that 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. Analysis From a review of the relevant evidence, the Board finds that the Veteran's symptoms more nearly approximate those contemplated by the 50 percent disability rating. Therefore, a higher rating is not warranted at any time during the appeal period. Both VA examiners concluded that the Veteran's symptoms cause occupational and social impairment that corresponds to a rating below 50 percent. While the record demonstrates that the Veteran is more limited than determined by these examiners, it does not support a finding that the Veteran's symptoms cause occupational and social impairment in all or most areas. Notably, the January 2020 VA examiner concluded that the Veteran has difficulty in establishing and maintaining effective work and social relationships, which is a symptom listed in the 50 percent rating criteria. This examiner also noted that the Veteran has difficulty in adapting to stressful circumstances, including work or a work-like setting. While this is a symptom listed in the 70 percent rating criteria, there is no evidence that the Veteran has any of the other symptoms listed in this rating criteria. To the contrary, the Veteran consistently denied suicidal ideation in treating visits and his counselors repeatedly noted that there is no persistent danger of harming self or others. Additionally, the Veteran consistently exhibited adequate grooming and was oriented to time, person, and place in treating visits. His thought processes were consistently noted to be coherent, logical, and goal directed. He did not exhibit psychotic symptoms and there is no mention of obsessional rituals interfering with routine activities in his treating records. Although the Veteran reported having daily anxiety and low moods, there is no indication in the treating records that these symptoms were near continuous or that they affected his ability to function independently, appropriately, and effectively. For example, the Veteran reported having anxiety and panic attacks when he does the Eucharist at church, but he continued to do it despite his symptoms. He also continued to do his volunteer work with the union retirees, despite the stress it caused. The Veteran also volunteered at the National River Aquarium by doing data entry on a weekly basis. Additionally, his counselor noted that he continued to incorporate wellness into his routines, despite reports of worsening symptoms. Furthermore, treating records demonstrate that the Veteran had some difficulty establishing and maintaining effective relationships, but he did not exhibit a complete inability to do so. As noted, the Veteran has reported in treating visits that he does the Eucharist at church and does volunteer work with union retirees and a local aquarium. Treating records also reveal that the Veteran maintains relationships with his wife and children. Moreover, the Veteran's symptoms do not equate in severity, frequency, and duration to cause social and occupational impairment in most areas, such as work, school, family relations, judgment, thinking, or mood. Throughout the appeal period, the Veteran has volunteered with his church, a union retiree organization, and a local aquarium. He has maintained relationships with his wife, children, and grandchildren, despite his anxiety and desire to self-isolate. Additionally, the Veteran continued to incorporate wellness activities into his routines, such as maintaining flower beds around his home, and master working through his anxiety by challenging himself. Moreover, his judgment and thinking have not been impaired, and while he has had a depressed mood or anxiety, this symptom is adequately compensated for in the assigned 50 percent evaluation. Thus, while his symptoms cause some deficiencies, they do not cause social and occupational impairment in most areas. Accordingly, the Board finds that a rating higher than 50 percent is not warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.