Citation Nr: 21064541 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-08 925 DATE: October 20, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to June 14, 2017, for posttraumatic stress disorder (PTSD) is denied. Entitlement to a 30 percent rating, but no higher, from June 14, 2017, to January 20, 2021, for posttraumatic stress disorder (PTSD) is granted. Entitlement to a rating in excess of 50 percent from January 21, 2021, to June 23, 2021, and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. Prior to June 14, 2017, the Veteran's PTSD was not manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. From June 14, 2017, to January 20, 2021, the Veteran's PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. From January 21, 2021, to June 23, 2021, the Veteran's PTSD was not manifested by occupational and social impairment with deficiencies in most areas. 4. From June 23, 2021, the Veteran's PTSD is not manifest by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to June 14, 2017, for PTSD have not been met. 38 U.S.C. § 1155, 5107 (b) (2012); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411 (2020). 2. The criteria for a 30 percent rating, but no higher, from June 14, 2017, to January 20, 2021, for PTSD have been met. 38 U.S.C. § 1155, 5107 (b); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for a rating in excess of 50 percent from January 21, 2021, to June 23, 2021, and in excess of 70 percent thereafter for PTSD have not been met. 38 U.S.C. § 1155, 5107 (b); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 to July 1980, and from December 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2014 and March 2016 rating decisions issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in October 2019. A transcript of the hearing is of record. The Board remanded this matter in January 2020 and December 2020. The Board finds there has been substantial compliance with its December 2020 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) Entitlement to a increased ratings for PTSD Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran asserts that she is entitled to higher disability ratings for her PTSD. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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, that would justify a particular rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed.Cir.2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because "[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology," and the plain language of the regulation makes it clear that "the veteran's impairment must be 'due to' those symptoms," "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio, 713 F.3d at 116-17. For example, "in the context of a 70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 117. +Thus, assessing whether an increased evaluation is warranted requires a two-part analysis: "The... regulation contemplates[: (1) ] initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation[; and (2)] an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas." Id. at 118. Pursuant to Diagnostic Code 9411, PTSD is rated 10 percent disabling when there is 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, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating is warranted 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, suspiciousness, panic attacks (weekly or less often), and chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events). Id. A 50 percent evaluation is warranted when there is 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. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent evaluation is for application 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. Id. Prior to January 21, 2021 A May 2016 VA treatment record showed that the Veteran's PTSD was exhibited by no hopelessness, normal appetite, sleeping well, no suicidal ideation, and no nightmares. She had not been taking medication, and the Veteran requested counseling. In an August 2016 VA examination, the examiner determined that a mental condition had been formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran reported visiting her mother when she had extra money to see her, and that she got along with her siblings. She said she had a wonderful relationship with her son and saw her 4 grandchildren. She said she had some friends, and that she watched television or sat outside. The Veteran did not have any symptoms for her PTSD, re-characterized as other specified trauma and stressor-related disorder. The examiner noted that the Veteran had many severe mental health symptoms that were fully attributable to her Cluster A personality disorder, alcohol use disorder, cannabis use disorder, and unspecified depressive disorder. These symptoms included sleep impairment, depressed mood, disturbances in motivation and mood, inability to establish and maintain relationships, and flattened affect. The examiner stated that due to the uncooperative behavior exhibited at the December 2013 VA examination, a female nurse practitioner from the clinic was also present for the entirety of the current examination. The examiner said that himself and the nurse practitioner observed symptoms consistent with the Veteran being under the influence of some substance, either alcohol or cannabis. The Veteran's speech was somewhat slurred, she provided few responses, seemed disinterested in the VA examination process, and she appeared tired. The examiner stated that there was no PTSD diagnosis. Symptoms were extremely mild and had little to no discernible impact on functioning. The examiner said that it was profoundly evident that the Veteran's social isolation and detachment, loss of interest, and inability to experience pleasure were longstanding symptoms fully attributable to her severe personality disorder and to her current and longstanding alcohol and cannabis use disorders (ongoing since age 17). The Veteran only gave very vague responses to the examiner's questions. The examiner noted that the Veteran appeared casually and appropriately dressed. Psychomotor retardation was present as the Veteran appeared to be under the influence of a drug or medication. There was paucity of speech and speech was somewhat slurred. Eye contact was appropriate, attitude was cooperative, affect was blunted, flat. Mood was depressed, thought processes and thought content were normal. Delusions were denied and hallucinations the Veteran said the only voice she heard was her reminding herself of something. She denied obsessions/compulsions. Panic attacks happened maybe once or twice. She slept 3 to 4 hours per night. Attention/concentration were within normal limits, and the Veteran was oriented. Abstract reasoning and memory were within normal limits. Intelligence was average. The Veteran was able to maintain hygiene. There were no episodes of violence and the Veteran did not behave impulsively. There was no inappropriate behavior. Homicidal and suicidal ideation were denied. The Veteran understood outcome of behavior. She had adequate insight. In a June 2017 VA treatment record, the Veteran said she was "really depressed" and her PTSD had worsened. The Veteran said she was having financial problems and that her service-connected PTSD disability rating had reduced. She said she had also been drinking and had been in and out of jail. The Veteran said she had not been seeing any therapist either. Throughout the interview she was crying and sobbing most of the time; however, she denied any suicidal or homicidal ideations. On examination, the physician described the Veteran as an elderly female appearing much younger than her stated age with small body frame and somewhat malnourished. She was alert and oriented with good hygiene and self-care. She was emotional and crying during most of the interview. Speech was linear, logical, coherent, and goal-directed. She described her mood as depressed and affect was dysphoric. Thoughts were non-psychotic with no suicidal or homicidal ideation. She denied any auditory visual hallucinations. Cognition, memory, judgment, and insight were fair. In a September 2019 VA treatment record, the Veteran was noted to be alert and oriented. Her mood and affect were normal. At the October 2019 Board hearing, the Veteran testified that she felt her PTSD had worsened. She said PTSD had affected her employment and she would get irritated. She described how it had a severe impact on personal relationships and her work history. The Veteran reported issues with mood swings, sleeping in, talking to people, and isolating herself. From January 21, 2021, to June 23, 2021 In a January 2021 VA examination, the examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran said she had never been married and had been in an off and on relationship over the past 2 years. She had one son that was doing well and 4 grandchildren that kept "her going." She said she joined a church and turned her life around 5 to 6 years ago. She reported that she denied any substance or alcohol abuse issues since her last exam and that she had a glass of wine every now and then socially. The examiner noted the following PTSD symptoms: depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran reported sensitivity to noise and chaos and constantly thought someone was watching her. She said that standing in line was stressful and hated events like the 4th of July. She also reported intrusive thoughts and worried about the young people being deployed. She avoided watching the news or hearing about any military activity. She said she had no motivation to see people. She said she did most things by herself. She endorsed nightmares and being unable to breathe sometimes due to anxiety. In an April 2021 VA treatment record, the Veteran was noted to be well groomed. There was no evidence of suicidal or homicidal ideation. From June 23, 2021 In a June 2021 VA examination, the examiner noted that the Veteran suffered from alcohol use disorder. However, the examiner stated that as the alcohol use disorder was in sustained remission, all symptoms were attributable to the Veteran's PTSD. The examiner said there were clinical associations between the diagnoses; the diagnoses have a strong clinical association and likely exacerbate each other. Therefore, the alcohol use disorder was likely secondary to PTSD. The examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran said that in her spare time she cut the grass, visited her grandchildren, and tried to see friends. Otherwise, she was most often alone and grieving as she had deaths in the family. She had a good relationship with her son, grandchildren, and some friends. The Veteran was trying to get back into therapy and was waiting to hear back from VA about an appointment. The Veteran reported that her most troubling PTSD symptoms were sleep problems and being afraid around other people. The examiner noted the following PTSD symptoms: depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks, circumstantial, circumlocutory or stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and neglect of personal appearance and hygiene. On examination, the examiner noted that the Veteran was casually attired, moderately groomed, with fair hygiene. The Veteran said that she struggled to keep up her hygiene like she should. She was cooperative and demeanor was polite, respectful, and agitated. Speech was normal and mood was "stressed out some." Affect was congruent with mood, mostly flat, occasionally anxious and sad. Thought process was mostly circumstantial and at times expressed some confusion. She denied suicidal and homicidal ideation. There was no evidence of hallucinations or thought disorders. The Veteran was alert and oriented and had appropriate concentration. Insight and judgment were fair. Additional post-service treatment records do not suggest higher ratings for the Veteran's PTSD prior to June 14, 2017, and from January 21, 2021. However, overall, and giving the Veteran the benefit of the doubt, the Board finds that from June 14, 2017, when the Veteran asserted increased depression and PTSD symptoms, to January 20, 2021, a 30 percent rating, but no higher, is warranted for the Veteran's PTSD. However, from January 21, 2021, to June 23, 2021, and from June 23, 2021, ratings in excess of 50 percent and 70 percent, respectively, are not warranted. Prior to June 14, 2017, the Veteran did not exhibit many PTSD symptoms. In fact, the August 2016 VA examiner found that the Veteran had a mental condition that had been formally diagnosed, but symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. The Board notes that this finding would in fact warrant a noncompensable rating. Therefore, a rating in excess of 10 percent prior to June 14, 2017, is not warranted. However, from June 14, 2017, to January 20, 2021, the Board finds that a 30 percent rating, but no higher, is warranted. The Veteran described herself as "really depressed" and stated that her PTSD had worsened. On examination, the Veteran was crying and somewhat malnourished. At the October 2019 Board hearing, the Veteran testified that she had issues with mood swings, sleeping in, talking to people, and isolating herself. The Veteran continued to work but also had issues with her employment. Therefore, resolving reasonable doubt, the Board finds that the Veteran had an increase in PTSD symptoms, enough to warrant a 30 percent disability rating. Nonetheless, from January 21, 2021, to June 23, 2021, the Veteran's PTSD symptoms were not severe enough to warrant a rating in excess of 50 percent. The January 2021 VA examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity. The Board acknowledges that her symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, and intrusive thoughts. However, she had a good relationship with her son and grandchildren, and she had joined a church a few years back and had maintained this activity. There was no evidence of suicidal ideation, obsessional rituals, speech problems, or near continuous panic attacks. The Veteran was found to be appropriately groomed. Although she had difficulty establishing and maintaining effective work and social relationships, this one component of a 70 percent disability rating is not enough to warrant an entire rating increase. Therefore, the evidence as a whole does not suggest that a higher 70 percent rating is warranted. Finally, from June 23, 2021, the Veteran's PTSD symptoms were not severe enough to warrant a rating in excess of 70 percent. The June 2021 VA examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity. This alone would in fact warrant a lesser 50 percent disability rating. However, additional symptoms included depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks, circumstantial, circumlocutory or stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and neglect of personal appearance and hygiene. The Board acknowledges that neglect of personal appearance and hygiene is one component of a 100 percent disability rating. Yet, there is no evidence to suggest gross impairment. Specifically, the Veteran had a good relationship with her son and grandchildren, as well as some friends. In her spare time she would cut the grass, visited her grandchildren, and tried to see friends. There is no evidence of gross impairment in thought process or persistent delusions or hallucinations. She did not report any suicidal or homicidal ideation. Despite memory loss issues, this did not rise to the level of forgetting names of close relatives, own occupation, or own name. Therefore, the evidence as a whole does not suggest that a higher 100 percent rating is warranted. Accordingly, prior to June 14, 2017, a rating in excess of 10 percent for PTSD is not warranted. From June 14, 2017, to January 20, 2021, a 30 percent disability rating is warranted for PTSD. From January 21, 2021, to June 23, 2021, and from June 23, 2021, a rating in excess of 50 percent and 70 percent, respectively, for PTSD are not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brown, Saudiee 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.