Citation Nr: 21065655 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-05 552 DATE: October 27, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) prior to December 22, 2020, is granted. Entitlement to a disability rating higher than 70 percent for PTSD from December 22, 2020, is denied. FINDING OF FACT Affording the Veteran the benefit of the doubt, since March 3, 2008, his PTSD has resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. It has not resulted in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent, but no higher, for PTSD prior to December 22, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating higher than 70 percent for PTSD from December 22, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to December 1969. This case comes to the Board of Veterans' Appeals (Board) from an August 2014 rating decision of the Department of Veterans (VA) Affairs Regional Office. This case was previously before the Board in April 2019, when the claim for an initial evaluation in excess of 30 percent for PTSD was denied. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC), which resulted in a May 2020 Joint Motion for Remand (JMR) that vacated the Board decision. The issue was remanded by the Board in October 2020 and April 2021 for further development. In a February 2021 rating decision, the Veteran's evaluation was increased to 70 percent, effective December 22, 2020. Because this increase does not cover the entire appeal period, the issue of entitlement to a higher initial rating remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). PTSD The Veteran contends that his service-connected PTSD warrants higher initial ratings. He has been assigned a 30 percent rating from March 3, 2008, and a 70 percent rating from December 22, 2020. Disability ratings are determined by comparing a veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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). The Veteran's service-connected PTSD is rated under Diagnostic Code 9411. Under this diagnostic code, a 30 percent rating is assigned when PTSD causes 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, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when a 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-term and long-term memory (retention of only highly learned material, forgetting to complete tasks); impaired judgment and abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned with an 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; and inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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; 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence shows symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. "[A] veteran may only qualify for a given disability rating under [38 C.F.R. § 4.130] by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). After reviewing all of the evidence of record, and affording the Veteran the benefit of the doubt, the Board finds that a 70 percent rating can be assigned for the entire appeal period. At a VA examination in February 2014, the Veteran reported having symptoms of irritable behavior; hypervigilance; exaggerated startle response; problems with concentration; persistent inability to experience positive emotions; feelings of detachment from others; markedly diminished interested or participation in significant activities; persistent and exaggerated negative beliefs or expectations about oneself; inability to remember an important aspect of the traumatic event; avoidance of external reminders of distressing memories; intense or prolonged psychological distress; dissociative reactions such as flashbacks; recurrent distressing dreams; and intrusive distressing memories. The examiner diagnosed the Veteran with PTSD, but found that he had only 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. While the February 2014 VA examiner found that the Veteran had only a mild level of impairment, the May 2020 JMR found that the February 2014 medical report was inadequate, as the examiner had not addressed the Veteran's prior medical history and examinations for PTSD to assess the current severity. It stated that the examiner had only asked about the Veteran's symptoms in the past month, and that his findings regarding symptomatology were therefore uncertain and did not provide adequate information to assess the severity of the Veteran's PTSD. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that an adequate medical report requires "consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail" so that the Board can make a fully-informed evaluation). The Board therefore accepts that while the Veteran's reported symptoms at that time should be considered, the conclusion reached by the February 2014 VA examiner holds no probative value in determining the severity of the Veteran's PTSD. Turning to the other evidence of record, the Veteran has more recently attended two VA examinations. In December 2020, the Veteran reported that he was still married, but that he avoided crowds and did not do well around others. He had major social anxiety and preferred to be alone. He had not worked since his last examination. The Veteran was found to have symptoms of depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, flattened affect, disturbances of motivation and mood, inability to establish relationships, difficulty adapting to stressful circumstances, obsessional rituals, impaired impulse control, and intermittent inability to perform activities of daily living, including maintenance of personal hygiene. The Veteran was alert and oriented, with unremarkable and logical speech. His mental flexibility was adequate, as was his verbal communication. He displayed adequate social skills, and his thought content was obsessively focused. The Veteran denied suicidal ideations or hallucinations. The examiner found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and/or mood. The Veteran attended a VA examination in June 2021. The Veteran was found to have symptoms of depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, impairment of short and long-term memory, disturbances of motivation and mood, difficulty with relationships, difficulty adapting to stressful circumstances, suicidal ideation, hypervigilance, nightmares, irritability, and arousal from triggers. The Veteran reported having thoughts of not wanting to live, but he denied any current suicidal plans or intentions, and said that he was aware of the VA crisis hotline if he needed it. The examiner also found that the Veteran had occupational and social impairment with deficiencies in most areas. A retrospective opinion was requested from the VA examiner. He wrote that the Veteran's PTSD symptoms were found to have a severe impairment on his functioning by December 2020, and that his symptoms had worsened over the years prior to that. He discussed some of the Veteran's past treatment records, which included treatment for PTSD since 2008. He indicated that since the Veteran's service in Vietnam, he had symptoms of exaggerated startle, hypervigilance, social withdrawal, heightened anxiety, intrusive memories, nightmares, poor sleep, irritability, and not wanting to live. The Veteran's VA treatment records show that the Veteran has reported significant mental health symptoms throughout the appeal period. In November 2009, the Veteran reported fear of loud noises and feeling nervous, and he denied any suicidal thoughts. At an October 2010 initial psychological evaluation, the Veteran reported having increased PTSD symptoms over the past few years. He reported that he was married, and that his relationship with his children was good. His hobbies were fishing and caring for his pet dog. He reported that he was active in his church, and that this was helpful. His affect was blunted, but there were no indications of problems with mental content. He denied suicidal ideation. In 2011 and 2012, the Veteran attended individual therapy sessions. In September 2012, the Veteran discussed continuing problems with fear and anxiety. He was cleanly dressed, with good personal hygiene. His thought processes were normal, and there was no evidence of gross memory loss. Speech was normal. In November 2018, the Veteran reported symptoms of depressed mood, anxiousness, and poor sleep. His mood was anxious, and his thoughts were coherent. He denied any feelings of hopelessness or thoughts about killing himself. In April 2019, the Veteran reported depressed mood, anxiousness, poor sleep, loss of interest in activities, and nightmares. His appearance was clean, and his mood was anxious. His speech was normal, and thought process was coherent. At a July 2020 psychiatric consultation, the Veteran reported having an increase in his PTSD symptomatology, including exaggerated startle response and hypervigilance. He said that he had gone off his prior medications a few years ago, and that his problems became "real bad." He denied any suicidal thinking. He did endorse avoidance symptoms, negative alterations in cognitive and mood, arousal symptoms, and panic attacks triggered by loud noises or reminders of Vietnam. In November 2020, the Veteran reported continued problems with anxiety, as well as feeling depressed and arguing with his wife. He was alert and oriented, his mood was okay, his hygiene met expectations, and speech was normal. Cognition was grossly intact, and memory was intact. In February 2021, he Veteran reported being irritable and anxious, but he was sleeping well and had a good appetite. He was alert and oriented, mood was nervous, affect was constricted, and speech was normal. His thought processes were normal, and insight was fair. The Veteran presented similarly in May 2021. Private treatment records from the Veteran's psychologist show that in 2010, he had symptoms of startle response, anxiety, and nightmares. A May 2012 evaluation from the psychologist stated that the Veteran had long-term symptoms of PTSD, including anxiety, upsetting memories, startle response to noise, and nightmares, and that he took regular medication. The Board therefore finds that affording the Veteran the benefit of the doubt, he has had symptoms which more likely approximate those representing a 70 percent rating for the entire period on appeal. Because the February 2014 VA examination has been found to be inadequate, the Board cannot rely on that examiner's findings, and therefore the most recent VA examinations are from 2020 and 2021. The symptoms demonstrated at these examinations, as well as those endorsed by the Veteran in 2014, are consistent with those shown in his VA treatment records. The show that the Veteran has had difficulty with anxiety, social functioning, memory, nightmares, irritability, depression, and suicidality throughout the entire period on appeal. The Board notes that suicidality is an especially significant symptom, and this symptom, on its own, could indicate that a 70 percent rating is warranted. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). While the June 2021 VA examiner wrote that the Veteran has had a progressive worsening of his symptoms throughout the appeal period, because it is not possible to establish when these symptoms worsened to a level that warrants a 70 percent rating, the Board will accept that this rating can be assigned for the entire appeal period. This grant of an initial rating of 70 percent actually exceeds the Veteran's request for a rating of 50 percent. While it is therefore a full grant of the benefit sought, the Board will nevertheless briefly discuss why a higher rating of 100 percent is not warranted. While the Veteran has demonstrated some significant symptoms associated with his psychiatric disorder, overall evidence is not reflective of total occupational and social impairment. The Veteran has suffered from depression, anxiety, sleep disturbance, nightmares, irritability, isolation, difficulty with relationships, and suicidal ideation. The evidence does not show, however, that it has caused him total functional impairment. The Veteran has consistently been found to present normally, with normal speech, appropriate eye contact, and fair insight. He has never had any delusions or hallucinations, and while he has been noted to have anxious or flattened affect, he is able to adequately communicate and follow instructions. At the December 2020 VA examination, he has found to have intermittent inability to perform activities of daily living, including maintenance of personal hygiene, but the majority of his examinations and treatment records found that he had adequate or good hygiene. The Board therefore finds that while the Veteran may have had intermittent inability to maintain hygiene, he generally was able to present himself normally and appropriately. The Board does not find that the preponderance of the evidence demonstrates inability to maintain minimal hygiene with such frequency or severity that a higher rating is warranted. Additionally, at no time has the Veteran been found to have gross impairment in thought processes or communication. The Veteran has been found to have short and long-term memory loss. While the Board acknowledges that this is a serious symptom, the Veteran's memory impairment has not been demonstrated to be sufficient severity to warrant a higher rating. There is no indication that the Veteran has ever had a severe memory loss, such as memory loss for names of close relatives, his own occupation, or his own name. He has never been found to be severely disoriented, and has not ever been noted to have illogical, obscure, or irrelevant speech. The evidence also shows that the Veteran has never had hallucinations or delusions. The Veteran has also reported problems with social isolation and irritability, but there is no indication that they have led the Veteran to have grossly inappropriate or violent behavior. The Veteran has reported being very isolative, and not having friends or socializing, although he is able to maintain some hobbies, such as going to church and caring for his dog, and he has a generally good relationship with his children. The Board finds that these symptoms are appropriately encompassed by the 70 percent rating. The Veteran has also expressed having had some suicidal ideation at times, and this is a very serious symptom which is a large part of the assignment of a 70 percent initial rating. The Veteran has never been found, however, to be a danger to himself or others. The Board does not find that the Veteran's intermittent suicidal ideation, while serious, is of sufficient frequency, severity, and duration to more nearly approximate a 100 percent rating. The Board has considered the Veteran's symptoms which are not included in the rating criteria listed under 38 C.F.R. § 4.130 and whether they constitute symptoms that would be comparable in type and degree (frequency, severity, and duration) to the criteria for a 100 percent rating. See Mauerhan, 16 Vet. App. at 443. The Veteran has been noted to have nightmares, hypervigilance, triggers, and sleep impairment. Although these symptoms are significant, the Board does not find that they are of a comparable severity to the very extreme symptomatology required for a rating of 100 percent. (Continued on the next page) In sum, the Board finds that affording the Veteran the benefit of the doubt, a 70 percent initial rating can be assigned for his PTSD. His symptoms have not, however, caused total occupational and social impairment at any time, and a 100 percent rating is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against any higher rating. 38 U.S.C. § 5107(b). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.