Citation Nr: 21065640 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 14-08 503 DATE: October 26, 2021 ORDER Entitlement to a disability rating higher than 50 percent for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), from January 1, 2013 through January 16, 2015 is denied. FINDING OF FACT For the period from January 1, 2013 through January 16, 2015 the Veteran's PTSD resulted in no more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW For the period from January 1, 2013 through January 16, 2015, the criteria for a disability rating higher than 50 percent were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 2005 to December 2006, from March 2007 to December 2007, and from May 2009 to May 2010. In August 2019, the Board denied increased disability evaluations prior to and after January 2015. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Court issued an order that set aside that part of the August 2019 Board decision that denied a rating above 50 percent for PTSD from January 1, 2013, through January 16, 2015, for compliance with its Memorandum Decision. Increased Schedular Ratings The Veteran is seeking a disability rating higher than 50 percent for his PTSD. Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in 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 particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if 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. When determining the appropriate disability evaluation under the general rating formula, 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 (2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F. 3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, 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 rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d 112. The classification outlined in the portion of VA's Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130. disability rating higher than 50 percent from January 1, 2013, to January 16, 2015 In the February 2021 Memorandum Decision, the Court indicated that the Board failed to provide adequate reasons or bases for its decision. Referring to a May 2013 VA treatment record discussing the presence and/or extent of hallucinations, the Court stated that it was unclear how the Board came to the conclusion that the Veteran did not have any "consistent, observable or measurable effects" of hallucinations or delusions and failed to explain why it determined the Veteran's hallucinations were minimal and did not impact functioning. The Court also stated that the Board did not discuss a January 16, 2015 VA examination in the context of the proper rating for the period of January 1, 2013, to January 16, 2015. The Court also determined that the Board failed to discuss how the Veteran's tendency toward isolation factored into its assessment of his social and occupational impairment under § 4.130. Relevant evidence during the time period in question includes VA outpatient treatment records between 2012 and 2015 which show continued monitoring of the Veteran's PTSD with history of psychotic features. These records are comprised primarily of reports from meetings with his case manager, individual psychotherapy sessions, group counseling sessions, medications prescribed during visits to the VA mental health clinic, and a record of behavior observed by medical staff. In late 2012 the Veteran had been switched to the medication Invega and reported improved mood and decreased fatigue. See clinical records from Roseburg VA Medical Center and White City VA Medical Center (VAMC). These VA treatment records also include multiple mental status examinations, which consistently show the Veteran was alert, fully oriented, and appropriately groomed and dressed. He was cooperative, attentive, and related appropriately with his healthcare providers. The Veteran's mood was often described as euthymic and congruent with affect, thought content, and conversation. There was no evidence of perceptual disturbances or disordered thought and his speech was normal rate and rhythm. The Veteran's insight and judgment were both generally good and his memory was intact. He consistently denied suicidal or homicidal ideation and routine assessments show he was at low risk for suicide. In general, it was noted that he benefited and responded well to his medication and therapy. Id. Specifically, entries dated in early 2013 show that in February, the Veteran reported he had not taken his medication for the past few weeks and was experiencing an increase in depression. He denied drinking or thoughts of self-harm and there were no signs of thought disorganization, auditory/visual hallucinations, or paranoia. See Mental Health Treatment Plan Note dated February 11, 2013. The following month the Veteran reported that he had been up for the last 3 days, due to nightmares and was experiencing paranoia and increased isolation. He reported smoking weed to help with sleep. The examiner noted there were no signs of thought disorganization or hallucinations and that the Veteran's paranoia sounded more like increased social anxiety and agitation. The Veteran was educated on marijuana use and increasing paranoia. The Veteran reported that he had not been taking his trazadone but would get back on a regimen to try to help him sleep. See Mental Health Treatment Plan Note dated March 25, 2013. An entry dated in May 2013, shows the Veteran reported that he restarted his trazadone and was sleeping better. Although he was still isolating, he reported that he trying to get out more and had joined the YMCA to try to stay active and lose weight. There were no signs of thought disorganization or hallucinations and the Veteran denied suicidal ideation. As part of the evaluation, the examiner administered the PTSD Check List Civilian Version (PCL-C) which shows the Veteran answered "moderately" to questions relating to repeated disturbing memories, thought or images; dreams of the same sort; trouble remembering important parts of a past stressful experience; loss of interest in enjoyable activities; feeling distant from others; emotional numbness toward those closest to him; feelings of a future to be cut short; trouble sleeping; trouble concentrating; hypervigilance; and easily startled. He answered "a little bit" in regard to questions of reliving stressful experiences; being very upset at reminders; physical reactions to reminders; avoidance of thought or talk about such experiences; avoiding activities or situations concerning the same; and irritability and angry outbursts. When asked how difficult these problems have made it for him to do his work, take care of things at home or get along with other people, the Veteran responded, "[s]omewhat difficult." See Mental Health Treatment Plan Note and Addendum dated May 9, 2013. An entry dated in August 2013 shows the Veteran had become noncompliant with his Invega medication and reported a great increase in "anxiety" and "feeling off" since then and requested "something else." However, there were no signs of psychosis or disorganization and the Veteran denied auditory hallucinations. The Veteran was restarted on the medication aripiprazole. See Mental Health Treatment Plan Addendum dated August 5, 2013. However, the following month the Veteran reported improved mood with the change in medication, but experienced increased akathisia (restlessness). The Veteran continued to struggle with sleep impairment and nightmares. He denied hallucinations and suicidal ideation and there were no signs of disorganization and paranoia was baseline. See Mental Health Treatment Plan Addendum dated September 6, 2013. A subsequent entry notes the Veteran reported to his case manager that he was "having a rough time right now," mainly due to financial stressors, but also physical pain and distressing PTSD symptoms. He reported feeling "reclusive" as if he was having a "breakdown." He denied suicidal/homicidal ideation and reported a positive support system. He continued have trouble with nightmares and overall sleep quality but was compliant with medications and was logical and sequential in his thought process during telephone conversation. He also did not express paranoia about his neighbors or anyone else and felt stable in his housing. Overall, he was engaged in the telephone conversation and expressed appreciation for the assistance offered. See OEF/OIF/OND Telephone Note dated September 13, 2013. The most recent record in 2013 shows that in October the Veteran reported an improvement in restlessness and that he was sleeping better with the trazadone. However, his mood was down as a friend had very recently committed suicide and he wanted to restart an antidepressant. He reported isolating from people and was encouraged to stay engaged and social. He denied hallucinations and suicidal ideation and there were no signs of disorganization and paranoia was baseline. See Mental Health Treatment Plan Note dated October 24, 2013. Entries dated in 2014 show that by January the Veteran began participating in a VA peer support group. It was noted that he interacted with the group in a positive manner and reported that he was "enjoying" his time there. He supported other Veterans by giving positive and constructive support. See OEF/OIF Note dated January 29, 2014. The following month the Veteran shared that was volunteering at the Salvation Army and that this helped give him purpose and structure. He was active in the group discussion and met with another Veteran after class to offer support and information. See OEF/OIF Note dated February 19, 2014. An individual therapy note following week shows that while the Veteran continued to struggle with erratic sleep and continued nightmares but reported the medication was helpful and keeping him stable. He reported that he has a volunteer job a few hours per week and a new girlfriend. The examiner noted the Veteran was notably less anxious. See Mental Health Treatment Plan Note dated February 24, 2014. By mid-2014 the Veteran reported that "things were good" and that he decided to move in with his girlfriend. He reported a positive relationship with her and that he was very close to her adult and teenage children. See Social Work Notes, dated in April and May 2014. The next relevant record is a January 16, 2015 VA examination report. At that time the Veteran was still living with his girlfriend and spent his time drawing, only leaving his apartment for appointments. He had not worked since approximately 2011 when he was employed parttime at a gas station. The Veteran reported receiving ongoing mental health treatment but had been off medications for about a year due to inability to get followup. He had some paranoid ideations and no longer obtained care at the VA due to this but was receiving private care. He also reported continued auditory and visual hallucinations but downplayed this when asked about them. The Veteran's reported symptomatology included depressed mood, anxiety, suspiciousness, panic attacks, near-continuous panic or depression, affecting the ability to function independently, appropriately and effectively chronic sleep impairment, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, and persistent delusions or hallucinations. During the evaluation the Veteran was fully oriented and cooperative, but anxious to leave. The examiner noted the Veteran displayed an anxious mood with flat affect and expressed feeling uncomfortable being in such a small room. Applying the Veteran's psychiatric symptomatology to the rating criteria noted above, the evidence does not support the assignment of an evaluation greater than 50 percent for the period from January 1, 2013 to January 16, 2015. While he consistently reported difficulties due to depression, nightmares, and chronic sleep impairment, there was no indication from the record that these symptoms affected his ability to function independently, appropriately, and effectively. The lay and medical evidence shows that despite his difficulties due to PTSD, the Veteran was capable of managing his own financial affairs, and there was no indication that his judgment was poor, and his thinking was consistently noted as normal. There was no indication of obsessional rituals, abnormal speech, or impaired impulse control. His mood was, more often than not, described as euthymic with appropriate affect. There is also nothing in the record suggesting that the Veteran has been unable to perform activities of daily living, that he required personal monitoring for safety, or that he was incapable of maintaining personal hygiene due to his PTSD. Overall, the relevant clinical findings during this timeframe show the Veteran's symptoms appeared to wax and wane, but in general were under control. In other words, there were periods when the Veteran was doing better and other times doing worse, but he was actually able to function fairly well. Even by his own account, his symptoms were less disabling, and in some instances improved, through the use of prescription medications and psychotherapy. So, while the Board does not discount the effect of PTSD symptoms on the Veteran's daily life, they were not equivalent, in frequency, duration or severity, to warrant the next higher evaluation of 70 percent from January 1, 2013 to January 16, 2015 which requires symptoms at a level of disability equivalent to deficiencies in most areas. See Vazquez-Claudio supra. To the extent the Veteran asserts that his PTSD symptoms indicate the need for an increased 100 percent evaluation, the Veteran's impairment from PTSD between January 1, 2013 to January 16, 2015 cannot be described as "total." The symptoms required for such an evaluation are neither complained of nor observed by medical health care providers, including 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. Crucially, the presence of certain symptoms is not necessarily determinative. These symptoms must also cause the occupational and social impairment in the referenced areas. See Vazquez-Claudio, supra. Although the evidence suggests significant occupational impairment attributable to PTSD, it does not reflect total occupational impairment, and, in any event, the Veteran did not also experience total social impairment. Per his self-reported history, the Veteran has been able to establish and maintain positive and supportive relationships with his girlfriend and her children. Also, despite a tendency to isolate, group therapy notes generally show the Veteran was active, attentive, engaged, and contributed meaningfully during group sessions. Therefore, his maintenance of relationships and activities under these circumstances is not consistent with the interpersonal relationship skills of a person suffering PTSD symptomatology equivalent in frequency, duration or severity required for a higher rating to warrant a 70 percent disability rating or higher. The Board acknowledges the Veteran's reports of auditory and visual hallucinations during outpatient evaluations in May 2013 in January 2015. However, the remaining record during this timeframe reflects that he consistently denied such symptoms and the examiners repeatedly found no objective evidence of any perceptual disturbances to support the presence of persistent delusions or hallucinations. These treatment records were compiled during regular therapy sessions, medicine reconciliation, and other outpatient visits by medical staff who are familiar with the Veteran's condition. See Chisem v. Brown, 4 Vet. App. 169 (1993) (noting that there is no "treating physician rule" requiring the Board to give additional evidentiary weight to opinions of doctors who have evaluated or treated the Veteran over time, but it is permissible for the Board to bear this length of treatment in mind when considering just how familiar with the Veteran's condition the clinician may be). So, to the extent the Veteran may have downplayed his hallucinations during VA examination in 2015, the Board finds that his statements denying such symptoms on all other occasions are particularly probative as they were reported consistently and made to medical professionals during his regular therapy sessions for the purpose of obtaining treatment and not specifically made for the purpose of obtaining compensation. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). While the January 2015 VA examiner's report is certainly relevant and credible, the Board finds that it is less probative than the Veteran's statements made to his medical providers in the pursuit of treatment during the appeal period in question. (Continued on the next page) Despite the Veteran's hallucinations and/or delusions during the timeframe in question, the evidence indicates that these were acute exacerbations during periods of noncompliance with prescribed medications and/or medication adjustments and were not representative of a sustained increase in symptomatology that would warrant an increased or staged rating. See 38 C.F.R. § 4.2 (regarding the duty to interpret medical findings comprehensively). Based on the foregoing, the Board finds that for the period from January 1, 2013 to January 16, 2015, the Veteran's impairment due to PTSD is most consistent with a 50 percent rating, and the preponderance of the evidence is against finding that his PTSD was productive of occupational and social impairment with deficiencies or total occupational and social impairment during that period. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bryant, Jeana R 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.