Citation Nr: 21065218 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-41 739 DATE: October 25, 2021 ORDER Prior to May 20, 2020, entitlement to a rating in excess 10 percent for posttraumatic stress disorder (PTSD) with other specified depressive disorder is denied. From May 20, 2020, entitlement to a rating in excess 50 percent for PTSD with other specified depressive disorder is denied. FINDINGS OF FACT 1. Prior to May 20, 2020, PTSD with other specified depressive disorder at worst did not manifest as 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 symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 2. From May 20, 2020, PTSD does not manifest as 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 that is 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. CONCLUSIONS OF LAW 1. Prior to May 20, 2020, the criteria for a rating in excess of 10 percent for PTSD with other specified depressive disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.130 Diagnostic Code 9411. 2. From May 20, 2020, the criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.130 Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from October 2003 to October 2009 including service in Iraq and Afghanistan with additional service in the National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal of a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In September 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The claims file contains a copy of the hearing transcript. In March 2020, the Board remanded the case for additional evidentiary development; the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). INCREASED RATINGS The Veteran asserts that the ratings assigned to his service-connected PTSD with other specified depressive disorder do not contemplate the respective severity of his symptoms. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Board will 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 course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several Diagnostic Codes; however, the critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). PTSD PTSD is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Pertinent to this appeal, the General Rating Formula for Mental Disorders are as follows: A 10 percent rating is assigned 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. 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 symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is assigned 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 abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is assigned 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 that is 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. A 100 percent disability rating is assigned 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, for the veteran's own occupation, or own name. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F. 3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). When adjudicating psychiatric claims, the Board has an obligation under Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) to conduct a three-part "holistic" analysis. The first step of the analysis is to assess the "severity, frequency, and duration of the signs and symptoms" of the Veteran's condition. The second step is to quantify "the level of occupational and social impairment caused by those signs and symptoms." The third step is to assign an "evaluation that most closely approximates that level of occupational and social impairment." See also Mauerhan, 16 Vet. App. 436 (holding that the list of symptoms in the disability rating schedule for psychiatric disabilities is not exhaustive); and see Vazquez-Claudio, 713 F. 3d 112 (holding that the disability rating schedule for psychiatric disabilities reflects "objectively-observable symptomatology," and "it is the severity of the effects of the symptoms as described by the examiner that determines the rating."). As all ratings in the general rating formula 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 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. See Vazquez-Claudio, 713 F. 3d 112. Prior to May 20, 2020 In August 2010, the Veteran sought treatment for mental health symptoms. Screening and initial consultation with a social worker show a diagnosis of PTSD but the Veteran departed the location of the initial treatment and did not attend a scheduled examination. In March 2011, the RO denied service connection for PTSD but granted entitlement to VA mental health care. The Veteran applied to reopen the claim in June 2014. In a March 2014 VA progress note, a VA clinician indicated that the Veteran has a history of PTSD with anxiety. Upon an outpatient clinic visit, the Veteran endorsed multiple symptoms of trauma (but minimized his issues focusing on depression alone). The clinician indicated that the Veteran was very pleasant but guardedreticent to discuss many issues during combat tours. The Veteran's mood was low, and his affect was flat. The Veteran denied suicidal or homicidal ideations and intents. In May 2015, the Veteran reported for an initial VA PTSD examination. A psychologist reviewed the claims file; considered the Veteran's lay accounts of his history; and conducted an appropriate evaluation. The psychologist diagnosed PTSD and other specified depressive disorder. The Veteran reported a second marriage with "ups and downs" which included raising school age children in a blended family. He enjoyed riding a motorcycle and outdoor activities, and he occasionally got together with friends from work. He worked full time as a federal helicopter mechanic and had no missed work, performance or interpersonal problems. He also had a second job flying aircraft in the evening. He was taking VA prescribed medication for symptoms of numbness, flashbacks, difficulty sleeping (6 hours per night), and detachment. He reported anxiety in interacting with people especially in new and unfamiliar circumstances. He had no history of violence, reported intermittent depressed mood, and described his hypervigilance as mild. The psychologist indicated that these mental health diagnoses were productive of 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 medication. Upon an extensive discussion of the Veteran's history and stressors, the psychologist noted symptoms of depressed mood and anxiety. The Veteran appeared neatly groomed with constricted affect. There were neither psychomotor nor speech abnormalities. Likewise, there was no evidence of hallucinations, delusions, or other psychotic symptoms. The Veteran endorsed neither homicidal nor suicidal intents, ideations, or plans. Cognitive screening was within a normal range; depression screening fell into the moderate-to-severe range. The psychologist noted verbal memory in efficiencies (3/5). The Veteran was deemed capable of managing his financial affairs. In May 2015, the RO granted service connection and assigned an initial rating of 10 percent from the date of the application to reopen the claim. In June 2015, the Veteran expressed timely disagreement with the initial rating, contending that it should be 30 percent. A review of VA treatment records and progress notes shows that the Veteran has an ongoing problem of depression. Through 2015 and 2016, clinician conducted multiple mental health screenings. These records disclose that the Veteran failed to report for therapy session on several occasions. At the September 2018 Board hearing, the Veteran testified that he engaged in ritualistic behavior involving security measures. However, these were described as checking doors and locks in the evening and turning off lights. Additionally, the Veteran reported that his mental health disability affected his family and social lives. He reported family problems, overall nervousness; and anxiety in group settings. He reported irritability but never to the point of violence. Rather he reported intermittent depressive episodes and introversion. He testified that he did not have problems at work but was allowed to take breaks when necessary. He continued to work full time in a federal job as well as participate in National Guard training; in 2017, 2018, and 2019, he was credited with 360 days of training. As noted above, to receive a higher rating for PTSD with specified depressive disorder prior to May 20, 2020, there would need to be a showing of 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 symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). The competent lay and medical evidence discloses that PTSD with specified depressive disorder prior to May 20, 2020 most closely approximated 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. The Board acknowledges the mostly off work social impairment from depressed mood and introversion, but places greater weight on the Veteran's continued satisfactory employment and service in the National Guard. The competent evidence of record fails to disclose symptomatology indicative, analogous, or suggestive of the higher disability rating, as reflected above. See Mauerhan, 16 Vet. App. 436; Vazquez-Claudio, 713 F. 3d 112. The Board has considered the Veteran's sincere belief that his PTSD with specified depressive disorder was more severe than that contemplated by a 10 percent rating. Indeed, the Veteran is competent to report that which he discerns directly, to include his symptoms, behavior, and conveying opinions of clinicians that he heard directly. The Veteran neither possesses expert training to render findings as to clinical severity. 38 C.F.R. § 3.159 (a)(1). See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). No clinician or psychologist indicated that the Veteran's mental health disability was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Indeed, the Veteran endorsed ritualized symptoms, but they are not of a nature not associated with normal evening activity by a homeowner and father. The Veteran appeared neatly groomed. There were no thought or speech abnormalities. Likewise, there was no evidence of hallucinations, delusions, or other psychotic symptoms. Moreover, the Veteran was able to handle his financial affairs and work full time at two jobs and National Guard training. Clinicians also indicated that the Veteran was pleasant. Consequently, a holistic Bankhead analysis, discerned though the three steps described above, suggests that the Veteran's degree of occupational and social impairment, prior to May 20, 2020, most nearly approximated 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. Overall, the Board finds that the preponderance of evidence is against granting a rating in excess of 10 percent for service-connected PTSD with specified depressive disorder prior to May 20, 2020. Accordingly, prior to May 20, 2020, the criteria for a schedular rating in excess of 10 percent for service-connected PTSD with specified depressive disorder have not been met. From May 20, 2020 On May 20, 2020, the Veteran reported for a VA PTSD examination. This psychologist indicated that the Veteran's for service-connected PTSD with specified depressive disorder was productive of 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. The Veteran reported that his depressive symptoms and PTSD arise from the experience of finding the body of a military coworker who committed suicide. He reported sleep disturbance, social isolation, and intrusive thoughts of the suicide. He continued to work full time including tasks such as firefighting and body recovery training but preferred not to socialize. He reported becoming nervous when anxious but did not have panic attacks. He reported arguments with his spouse and difficulty concentrating. On examination, the examiner noted symptoms included depressed mood; anxiety; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Behaviorally, the psychologist indicated that the Veteran had a flat affect; wrung his hands; and placed his hands in his hair. However, the Veteran appeared neat, well-groomed, and answered all questions in a coherent and rational manner. The Veteran was competent to handle his financial affairs. Lastly the psychologist indicated that the Veteran's specified depressive disorder had been subsumed by service-connected PTSD. As noted above, to receive a higher rating for PTSD, there would need to be a showing of 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 that is 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. The competent evidence shows that PTSD, at worst, manifested in 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. Additionally, from May 20, 2020 PTSD was productive of symptoms of depressed mood; anxiety; chronic sleep impairment; mild memory loss; memory loss for names of close relatives, own occupation, or own name; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Even though the May 20, 2020 psychologist reported PTSD productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks, the Board finds that competent evidence of record discloses symptoms, indicative, analogous, or suggestive of 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 abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. See Mauerhan, 16 Vet. App. 436; Vazquez-Claudio, 713 F. 3d 112. Indeed, these disability picture falls within that contemplated by a 50 percent rating. The Veteran is competent to report that which he discerns directly, to include conveying opinions of clinicians that he heard directly. However, upon review of the evidence of the record, the Veteran neither possesses expert training to render clinical findings as to severity. 38 C.F.R. § 3.159 (a)(1). Moreover, the record fails to disclose that a competent professional directly reported the findings, as noted above, to the Veteran. See Jandreau, 492 F. 3d 1372; Kahana, 24 Vet. App. 428. The May 20, 2020 psychologist did not note that the Veteran endorsed suicidal ideations, near continuous panic or depression, obsessive rituals, and/or illogical speech. The Veteran appeared neat, well-groomed, and answered all questions in a coherent and rational manner. And the Veteran was competent to handle his financial affairs. The Veteran appeared neatly groomed. There were neither thought nor speech abnormalities. Likewise, there was no evidence of hallucinations, delusions, or other psychotic symptoms. Nothing in the evidence of record even suggests that the Veteran was unable to handle his financial matters, "person," or hygiene. The Board again places weight on the Veteran's continued ability to work full time including engaging in difficult work tasks such as firefighting and body recovery as well as participating in National Guard training, remaining qualified for deployments. Consequently, an holistic Bankhead analysis, discerned though the three steps described above, suggests that the Veteran's degree of occupational and social impairment manifested as occupational and social impairment with reduced reliability and productivity due to such symptoms as: depressed mood; anxiety; chronic sleep impairment; mild memory loss; memory loss for names of close relatives, own occupation, or own name; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Overall, the Board finds that the preponderance of evidence is against granting a rating in excess of 50 percent for service-connected PTSD from May 20, 2020.Accordingly, from May 20, 2020, the criteria for a schedular rating in excess of 50 percent for service-connected PTSD have not been met. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.