Citation Nr: 21064790 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 14-09 713 DATE: October 21, 2021 ORDER Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder ("PTSD") is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran's symptoms of PTSD did not cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for entitlement to 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, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from February 1974 to January 1978. The Veteran passed away in March 2017. His spouse filed a timely request for substitution in May 2017 and is the appellant. This matter came before the Board of Veterans' Appeals ("Board") on appeal from a June 2012 rating decision of the Department of Veterans Affairs ("VA") Regional Office ("RO"). By way of background, this appeal was remanded by the Board in November 2018 following a remand from the Court of Appeals for Veterans Claims ("CAVC") in February 2018. The Board issued a decision on this matter in March 2020 and denied the Veteran's claim of entitlement to a disability rating in excess of 50 percent for the service-connected PTSD. Subsequently, in November 2020 CAVC granted a Joint Motion for Remand ("JMR"), vacating the Board's March 2020 decision and remanded the matter for further proceedings consistent with JMR. Subsequently, the Board remanded the matter in May 2021 and directed the RO to obtain an addendum opinion to address the nature and severity of the Veteran's PTSD for the period prior to his death. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the RO substantially complied with the directives set forth in the May 2021 remand and the June 2021 medical opinion is adequate to decide the issue on appeal. See Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall). Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder ("PTSD"). The Veteran's claim for entitlement to service connection for PTSD was received on April 12, 2010. In the June 2012 rating decision, the RO granted the entitlement to service connection for PTSD with an evaluation of 50 percent from April 12, 2010. In June 2013, the Veteran timely filed a notice of disagreement with the June 2012 rating decision. Subsequently, in the January 2014 statement of the case, the RO denied the entitlement to a disability rating in excess of 50 percent for the service-connected PTSD. The Veteran timely appealed the matter to the Board in February 2014. Hence, the rating period on appeal begins from April 12, 2010, the date of receipt of initial claim. The appellant contends that the Veteran's disability rating for the service-connected PTSD should be greater than 50 percent for the period prior to his death. The Veteran received 50 percent disability rating for the service-connected PTSD from April 12, 2010 under diagnostic code 9411. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a 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 U.S.C. § 5107; 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability rating. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.1. The Board should consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the period of claim on appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Under Diagnostic Code 9411, a noncompensable rating is warranted when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 10 percent rating is warranted for 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. Id. 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), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating 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); inability to establish and maintain effective relationships. Id. A 100 percent rating 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; memory loss for names of close relatives, own occupation, or own name. Id. In order to be assigned a specific rating, a veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002). The symptoms listed under each rating are not exhaustive. Id. The key element for a rating under the general formula for mental disorders is the degree of social and occupational impairment caused by those symptoms, rather than how many of the listed symptoms the veteran exhibits. Id. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. In addition to assessing the current severity, frequency, and duration of the Veteran's service-connected psychiatric symptoms during the relevant appeal period, it should also be considered whether such symptoms result in a degree of occupational and social functioning to warrant a higher rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013) (holding that 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, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage). Turning to the evidence of record from the beginning of the rating period on appeal, the February 2010 VA psychiatric note reflects that the Veteran reported decreased anxiety and sleeping better. His anger was better controlled; however, he still raised his voice to family members. The Veteran denied violent or destructive behavior and had little better energy level. He also denied feeling depressed and his mood was improved, with decreased and lately mild and intermittent anxiety and irritability. The clinician noted that the Veteran had well-organized thought process and denied having any thoughts of harming himself or anyone else. He was not delusional, paranoid, and denied having any hallucinations. The July 2010 private treatment record reflects that the Veteran was oriented to time, place, and person. He had normal mood and was active and alert. The December 2010 VA mental health note reflects that the Veteran was alert, oriented, casually dressed and well groomed. The Veteran denied suicidal ideation and homicidal ideation. His speech was clear and coherent, with no signs of thought disorder or psychosis. The Veteran denied hallucinations or delusions and did not exhibit any signs of paranoia. During the February 2011 VA treatment, the clinician noted that the Veteran was alert, oriented, casually dressed and well groomed. The Veteran denied suicidal ideation and homicidal ideation. His speech was clear and coherent, with no signs of thought disorder or psychosis. The Veteran denied hallucinations or delusions and did not exhibit any signs of paranoia. He reported that he was working a part time job and walking for exercise. The clinician noted depression, anxiety, and alcohol dependence in early partial remission. In the August 2011 statement, the Veteran's wife asserted that the Veteran was moody, awful at times, and not pleasant to be around. Sometimes he was not able to sleep and would get upset, yell or snap for no reason. The Veteran underwent a VA compensation and pension examination in May 2012, during which the examiner noted the diagnoses of mild PTSD. The examiner noted the Veteran's level of severity of PTSD as occupational and functional 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. The Board notes that this level of impairment is contemplated in 30 percent rating criteria under diagnostic code 9411. See 38 C.F.R. § 4.130, Diagnostic Code 9411. For PTSD diagnosis, the examiner noted that the Veteran had recurrent and distressing recollections of the event, including images, thoughts, or perceptions; recurrent distressing dreams of the event; efforts to avoid thoughts, feelings or conversations associated with the trauma; marked diminished interest or participation in significant activities; feeling of detachment or estrangement from others; difficulty falling or staying asleep; irritability or outbursts of anger; and exaggerated startle response. The symptoms identified by the examiner were anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a worklike setting; getting nervous when sees helicopters and starting following them; starting gagging and getting nervous; helicopter noises made him jumpy; sight of blood made him nervous; avoided noisy places; anger issues and isolation; little interest; low energy; "not good" memory; and impaired sleep. The Board notes that overall, the above noted symptoms aligned with 30 and 50 percent rating criteria except "difficulty in adapting to stressful circumstances, including work or worklike setting," which is an enumerated symptom in 70 percent rating criteria under diagnostic code 9411. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The above noted symptoms of anxiety; panic attacks that occur weekly or less often; "not good" memory or mild memory loss such as forgetting names, directions, or recent events; and impaired sleep are enumerated symptoms in 30 percent rating criteria under diagnostic code 9411. Id. The above noted symptom "disturbances of motivation and mood" is one of the enumerated symptoms in 50 percent rating criteria under diagnostic code 9411. Id. The remaining symptoms noted by the examiner are not clearly listed in the rating criteria; however, they are aligned with 30 and 50 percent rating criteria under diagnostic code 9411, such as recurrent and distressing recollections of the events, including images, thoughts or perceptions, and efforts to avoid thoughts, feelings or conversations associated with trauma are more closely aligned with anxiety, suspiciousness, panic attacks (weekly or less often) that are enumerated under 30 percent rating criteria. Id. Recurrent distressing dreams of the event closely aligned with anxiety and chronic sleep impairment enumerated under 30 percent rating criteria. Id. Marked diminished interest or participation in significant activities, anger issue, isolation, little interest, and low energy are the symptoms that are closely aligned with "disturbance of motivation and mood" that is one of the symptoms enumerated in 50 percent rating criteria because diminished interest or participation in significant activities demonstrates a disturbance of motivation to perform those activities. Id. Feeling of detachment or estrangement from others corresponds with depressed mood and suspiciousness that are enumerated in 30 percent rating criteria because detachment is similar to the feelings of unjustified suspiciousness. Id. Irritability or outbursts of anger corresponds with disturbance or motivation and mood that is enumerated in 50 percent rating criteria, however, it does not correspond with "unprovoked irritability with periods of violence" that is enumerated in 70 percent criteria because there is no evidence in the record that demonstrates that the Veteran had periods of violence with family or at the work. Id. Exaggerated startle response is similar to stress and fear of anxiety and suspiciousness that are enumerated in 30 percent criteria. Id. The symptoms of getting nervous when the Veteran saw helicopters and started following them; starting gagging and getting nervous; becoming jumpy on helicopter noises; getting nervous on sight of blood; and avoiding noisy places, all of these symptoms closely aligned with anxiety and suspiciousness enumerated in 30 percent rating criteria. Id. Besides the above described symptoms, the May 2012 examiner noted the Veteran's social, family, marital, occupational, educational, and mental health history. Regarding social, marital, and family history, the examiner noted that the Veteran denied mental health care before the age of eighteen. He was married for 38 years to first and the only wife and had three adult children and three grandchildren. The Veteran stated that his marriage was good, but he would be angry at times that would frustrate his wife. He also stated that he had good relationship with children and grandchildren. Regarding occupational and educational history, the examiner noted that the Veteran completed 11th grade and then joined Marine Corps. After honorable discharge he worked at Lackland Air Force Base in food service and at Kelly Air Force Base as a warehouseman between 1978 and 1984. Then the Veteran joined United States Postal Service ("USPS") as a truck driver in 1984 and retired in 2009 after 25 years of service. The examiner noted that the Veteran did well during his jobs. The wife stated that the Veteran did well at his jobs because he avoided people and kept to himself. Regarding mental health history, the examiner noted that the Veteran denied any psychiatric hospitalization and any suicide attempts. He started Xanax (medication) in 1990s for anxiety and anger issues at work, and then started VA mental health care in 2009. The VA treatment records from 2012 until the Veteran's death in 2017 demonstrate that the Veteran's PTSD symptoms were overall under control, such as June 2012, January 2013, and May 2013 VA treatment record reflect that the Veteran's PTSD was controlled with medication. The February 2014 VA treatment record reflects that the Veteran PTSD symptoms improved after he and his wife adopted grandchildren. The August 2014 VA treatment record noted that the Veteran was emotionally doing well and denied any depression. A separate August 2014 VA treatment record noted the Veteran had occasional recurrence of PTSD type symptoms and was dealing with mental health issues related to his grandson. The August 2015 VA treatment record reflects the Veteran stated that he was not sleeping well and was depressed but not to the point where he would hurt himself or anyone else. He also stated that medication helped him. The February 2016 VA treatment record reflects the Veteran stated that he was emotionally fine and denied any depression. The clinician during the March 2016 VA treatment noted that the Veteran did not have any acute distress and was oriented. The August 2016 VA treatment record noted depression, however, no other psychiatric symptoms, including anxiety, anhedonia, sleep problems, difficulty concentrating, or paranoia were noted. The October 2016 VA treatment record noted that the Veteran was depressed and was taking medication. These VA treatment records, even though they did not quantify the level of social or occupational impairment, did not show any worsening of the PTSD symptoms since the May 2012 VA examination. The Veteran expanded his family by adopting grandchildren and was feeling better after adoption. In a September 2019 record based VA medical opinion, the examiner opined that the records indicated a mild level of PTSD with occasional social and occupational impairment. The examiner also stated that the records indicated that the Veteran had experience of improvement with his PTSD but was often medication noncompliant. The examiner also opined that it was not possible to conclusively distinguish the Veteran's tension headaches from his psychiatric disability. The examiner also opined that it was impossible to retroactively determine the impact on functioning. Subsequently, in the March 2020 decision, the Board denied entitlement to a disability rating in excess of 50 percent for PTSD, which was appealed by the Veteran to CAVC. Following a remand from CAVC, the Board remanded the matter in May 2021 to obtain and addendum opinion and directed the examiner to describe the symptoms attributed to the Veteran's PTSD and address the social and occupational effects of these symptoms. Hence, a medical opinion was obtained in June 2021, in which the examiner stated that he reviewed the medical evidence, and noted symptoms of anxiety, panic attacks happening less than once a week, chronic sleep impairment, mild memory issues, disturbance of motivation and mood, and difficulty adapting to stressful circumstances, including in a work setting, anger, isolation, low interest and energy. The examiner noted that the Veteran did not have suicidal thoughts or any history of suicidal attempts. The examiner also noted that the Veteran had a good marriage, though he would get angry at times, which would frustrate his wife. He also had good relationship with family. Regarding occupational history, the examiner noted that the Veteran worked for the USPS from 1984 to 2009, 25 years, and did well in all of his jobs. He also did not have a history of legal or substance abuse issues. The examiner noted the level of severity of PTSD as impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, though generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Board notes that this level of impairment corresponds with 30 percent rating criteria under diagnostic code 9411. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The examiner also noted that the effects of the PTSD symptoms were mild. The Veteran was noted to have occasional decrease in work efficiency but was generally functioning satisfactorily. Positive factors in his life to support the mild effects included his good marriage, good relationships with his family, and having performed well in all of his previous jobs, being able to retire after 25 years with the USPS. Therefore, the examiner concluded that it appeared the intensity of impairment overall with the Veteran's work and social function is in the mild range as noted in the 2012 examination, and it would be mere speculation to presume otherwise. The Board finds the above June 2021 medical opinion adequate because the examiner noted the PTSD symptoms and assigned a level of social and occupations impairment with explaining the reasons why this level is appropriate. Based on the above described evidence of record, the Board concludes that the Veteran psychiatric symptoms were not of a severity, frequency, and duration sufficient to warrant a higher disability rating of 70 percent. As described above, most of the symptoms noted by the VA examiner were aligned with 30 and 50 percent rating criteria under diagnostic code 9411. See 38 C.F.R. § 4.130, Diagnostic Code 9411. There is a single symptom of "difficulty in adapting to stressful circumstances, including work or worklike setting," noted by the examiner during the May 2012 VA examination, is enumerated under 70 percent rating criteria. However, this reflects only one aspect of life, and also this is not supported by the Veteran's occupational history because the record demonstrates that the Veteran was able to work at USPS for 25 years from 1984 to 2009. As noted during the May 2012 examination, the Veteran's wife indicated that the Veteran was able to do good at his job because he kept to himself, which indicates that the Veteran was able to adapt himself at his work. Also, the evidence of record demonstrate that the Veteran did not have symptoms of 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; or inability to establish and maintain effective relationships, which are contemplated in a 70 percent rating criteria. See 38 C.F.R. § 4.130, Diagnostic Code 9411 Furthermore, the Veteran's family and social history reflects that he had good relationship with his wife, children, and grandchildren. He adopted his grandchildren and started feeling better. In the August 2011 statement, the Veteran's wife asserted that the Veteran was moody, awful at times, and not pleasant to be around. Sometimes he was not able to sleep and would get upset, yell or snap for no reason, which indicates that at times the Veteran might have difficulty in establishing and maintaining effective work and social relationships, which is a contemplated symptom under 50 percent rating criteria. See 38 C.F.R. § 4.130, Diagnostic Code 9411. However, this does not indicate the Veteran had total inability to establish and maintain effective relationships, which is a symptom contemplated in 70 percent rating criteria, because overall the Veteran had good relationship with his wife, children, and grandchildren. Id. The Board also finds that majority of the VA treatment records, and VA examinations indicate that the Veteran demonstrated that he was oriented to time and place, neatly dressed and groomed. Also, as noted above the VA treatment records from 2012 after the VA examination till his death in 2017 indicate that the Veteran symptoms of PTSD were occasional and did not worsen and controlled by the use of medication. Based on the above analysis, the Board finds that the preponderance of the evidence of record indicates that throughout the appeal period, the level of impairment caused by the Veteran's PTSD symptoms more closely approximates the level associated with a 50 percent disability rating, and a higher rating of 70 percent is not warranted because the Veteran's PTSD symptoms did not cause occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, thinking, or mood. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Hence, entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder is denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.