Citation Nr: 21066374 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-52 640 DATE: October 29, 2021 ORDER 1. An initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD), prior to September 24, 2014, is denied. 2. An initial rating in excess of 50 percent for PTSD, from September 24, 2014, to October 27, 2019, is denied. 3. An initial rating in excess of 70 percent for PTSD, from October 28, 2019, to April 13, 2021, is denied. 4. An initial 100 percent rating for PTSD, from April 14, 2021, is granted. FINDINGS OF FACT 1. Prior to September 24, 2014, the Veteran's PTSD is not productive of a disability picture that more nearly approximates that of occupational and social impairment with reduced reliability and productivity. 2. From September 24, 2014, to October 27, 2019, the Veteran's PTSD is not productive of a disability picture that more nearly approximates that of occupational and a social impairment with deficiencies in most areas. 3. From October 28, 2019, to April 13, 2021, the Veteran's PTSD symptoms have not caused total occupational and social impairment. 4. From April 14, 2021, the Veteran's PTSD symptoms have caused total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating for PTSD in excess of 30 percent prior to September 24, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for an initial rating for PTSD in excess of 50 percent from September 24, 2014, to October 27, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for an initial rating for PTSD in excess of 70 percent from October 28, 2019, to April 13, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 4. The criteria for an initial 100 percent rating for PTSD from April 14, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1990 until his honorable discharge in April 2010, including service in Iraq. In April 2021, the Board remanded the issue to contact the Social Security Administration (SSA) and obtain outstanding medical records regarding the Veteran. In May 2021 a request was sent to the SSA National Record Center to obtain medical records. In June 2021, the SSA National Record Center sent a notification stating the requested medical records were not available because there were no medical records. Therefore, the Board finds there has been substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). 1. An initial rating in excess of 30 percent prior to September 24, 2014, in excess of 50 percent from September 25, 2014, to October 28, 2019, and in excess of 70 percent from October 29, 2019, to April 13, 2021, for PTSD. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The rating criteria for rating mental disorders, including PTSD, reads as follows: A 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. 38 C.F.R. § 4.130. A 70 percent rating requires 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 50 percent rating requires 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 effective work and social relationships. Id. A 30 percent rating requires 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, and mild memory loss (such as forgetting names, directions, recent events). Id. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Federal Circuit explained that the frequency, severity, and duration of the symptoms also played an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. An initial rating in excess of 30 percent prior to September 24, 2014, for PTSD. After careful review, prior to September 24, 2014, the evidence does not more closely approximate occupational and social impairment with reduced reliability and productivity to warrant a higher 50 percent evaluation. In August 2004, service treatment records (STRs) indicate that the Veteran did not report any psychiatric symptoms. In July 2012, the Veteran underwent a VA PTSD Disability Benefits Questionnaire (DBQ). The VA examiner opined that the Veteran had occupational and social 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 examiner noted the Veteran arrived on time for his appointment and was appropriately dressed and groomed. He showed no signs of psychomotor agitation. His mood was described as anxious. His affect was restricted. His speech was normal in tone, rate and content. His thoughts appeared organized and logical. There was no evidence of psychosis. He denied suicidal or homicidal thoughts. Concentration was normal. Panic attacks were absent. He did not appear to be a threat of danger to himself or others. The symptoms noted on examination were the following: anxiety, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The VA examiner also indicated that the Veteran has recurrent recollections on a daily basis, nightmares twice a week and has difficulty focusing. In November 2013, a VA mental health treatment note indicated the Veteran endorsed having anxiety. He denied any depression, panic attacks, or hallucinations. He also denied any past or current suicidal ideation. The examiner noted the Veteran oriented to time, place, person, and purpose. Veteran did not appear to be in any acute psychological distress. There were no indications of mental content symptoms, perceptual disturbance, or gross cognitive confusion. Thinking and speech were within normal limits. The examiner provided an opinion stating the Veteran had a diagnostic impression of a 30 percent evaluation for PTSD. The Board finds that for this period of appeal, the evidence preponderates against the assignment of a 50 percent rating for the Veteran's PTSD, prior to September 24, 2014. The Veteran had two separate VA evaluations for PTSD, in July 2012 and November 2013, and both opined that the Veteran appropriately met the 30 percent rating criteria for PTSD. The PTSD symptoms the Veteran endorsed during this time period included anxiety, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Although the Veteran reported these symptoms, the Board does not find the symptoms to be of such frequency, severity, and duration that it results in occupational and social impairment with reduced reliability and productivity to warrant a higher 50 percent evaluation at any point during the period of appeal. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (stating that use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating). A 50 percent rating requires 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 effective work and social relationships. The Veteran has not displayed these symptoms prior to September 24, 2014. VA examinations and outpatient treatment records reflect the Veteran retained a good relationship with his spouse and children, was still working and had some hobbies. Treatment records during this period reflect he denied hallucinations and suicidal and homicidal ideations. Accordingly, prior to September 24, 2014, the Board finds that the Veteran's symptoms of PTSD do not warrant a rating in excess of 30 percent, and the claim is denied to that extent. An initial rating in excess of 50 percent from September 24, 2014, to October 27, 2019, for PTSD After careful review, from September 24, 2014, to October 27, 2019, the evidence does not more closely approximate occupational and a social impairment with deficiencies in most areas. to warrant a higher 70 percent evaluation. In April 2015, the Veteran underwent a VA PTSD Disability Benefits Questionnaire (DBQ). The VA examiner opined that the Veteran had occupational and social 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 symptoms noted on examination were the following: anxiety, disturbances of motivation and mood, and chronic sleep impairment. The Veteran denied having auditory or visual hallucinations, or attempting suicide or homicide, and denied ever being admitted to a psychiatric hospital. The VA examiner noted the Veteran currently works as a fleet mechanic and is married for 23 years with two children. In May 2015, the Veteran submitted a statement indicating that he has been unable to hold a steady job for any extended period of time, has constant nightmares (which he is prescribed medication for), and has sleeping issues. The Veteran also stated that he has constant thoughts about things he saw in combat. He also stated he is not as social as he used to be. In April 2016, a VA mental health treatment note indicated that the Veteran was having increased nightmares (occurring five times per week), sleeping about four hours per night, feeling more irritable and isolating more from people. The Veteran denied any suicidal or homicidal thoughts. The Veteran also stated that his goal during the counseling session was to be able to feel less anxiety. The VA treatment note also indicated that the Veteran was appropriated dressed, was oriented to person, place, time, situation, affect was calm, judgment was within limits and his thought process was relevant. In October 2016, the Veteran submitted a VA Form 9 indicating that for the past three years he has had issues maintaining stable employment for long term, has been easily irritated at work and at home, and was removed as a manager from a job because of his inability to function with loud noises. He also stated he is easily provoked and seems to have unprovoked fights/arguments with family members. In February 2017, a VA mental health treatment note indicated that the Veteran was excited to be starting a new job at the railroad. The Veteran described stress within his marriage lately. He noted that he continues to be compliant with his psychiatric medications. The VA treatment note also stated that the Veteran continues to have nightmares two to three times per week. The Veteran denied any suicidal or homicidal thoughts. In August 2018, a VA mental health treatment note indicated that the Veteran arrived on time to his mental health session. He was neatly groomed, casually dressed, oriented, attentive and engaged in session. The treatment note stated that a discussion of the Veteran's functioning took place and how that had changed since he was last seen in July 2017. The Veteran endorsed combat related nightmares, difficulty sleeping, intrusive memories, irritability, avoidance of crowds, panic attacks, and hypervigilance. The Veteran noted he is still married and sometimes travels with or goes out with his wife. He still likes to collect remote control cars and train sets. The VA treatment note also indicated the Veteran is compliant with his psychiatric medications. The Veteran denied suicidal and homicidal thoughts and did not endorse hallucinations. In September 2019, a VA treatment note showed that the Veteran had a depression screening where the notes indicated the Veteran endorsed having interest in doing things. The results were negative for any suicide risk or having any thoughts or hurting himself. The Veteran endorsed having recent nightmares and being constantly irritable. The VA treatment note also stated that the Veteran was feeling detached from people and activities. The Board finds that for this period of appeal, the evidence preponderates against the assignment of a 70 percent rating for the Veteran's PTSD. The Veteran's PTSD symptoms do not more nearly approximate occupational and social impairment with deficiencies in most areas, which would warrant a 70 percent rating under Diagnostic Code 9411, from September 24, 2014, to October 27, 2019. The Veteran has not been found to have suicidal ideation; obsessional rituals which interfere with routine activities; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; or neglect of personal appearance and hygiene. The Boards notes that the Veteran's symptoms were more consistent with a 50 percent rating. Significantly, the April 2015 VA examiner opined that the Veteran had occupational and social 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. Throughout this period of appeal, the Veteran endorsed the following symptoms which are more consistent with a 50 percent rating: nightmares, anxiety, disturbances of motivation and mood, chronic sleep impairment, irritability, isolated, panic attacks, and avoidance of crowds. The Veteran also has indicated he has continued taking his psychiatric medications and has denied any suicidal or homicidal thoughts. There is no doubt that the Veteran has had serious symptoms. However, the Veteran's PTSD symptoms from September 24, 2014, to October 27, 2019, do not more nearly approximate occupational and social impairment with deficiencies in most areas. He was consistently noted to be oriented in all spheres, have adequate hygiene and no hallucinations or suicidal or homicidal ideation during this period. He continued to have a good relationship with his wife and children and was able to go out, but ensured to avoid crowds. Insight was described as good or intact. Accordingly, from September 24, 2014, to October 27, 2019, the Board finds that the Veteran's symptoms of PTSD do not warrant a rating in excess of 50 percent, and the claim is denied to that extent. An initial rating in excess of 70 percent from October 28, 2019, to April 13, 2021, for PTSD. After careful review October 28, 2019, to April 13, 2021, the evidence does not more closely approximate total occupational and social impairment to warrant a higher 100 percent evaluation. In October 2019, the Veteran underwent a VA PTSD Disability Benefits Questionnaire (DBQ). The VA examiner opined that the Veteran had occupational and social 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. During the examination, the Veteran reported he rides his bicycle and collects miniature cars, trains, and planes. He stated to have friends but stated that he does not interact with them. The Veteran reported to have had ten jobs since he retired from active service in 2010. For the past two years, the Veteran has been employed as a service technician for a propane company. The Veteran also stated he and his wife have observed a decline in his functioning. He expressed particular concern about intense trauma-related nightmares. The VA examiner noted the Veteran has persistent and exaggerated negative beliefs or expectations about oneself, others, or the world and a persistent negative emotional state. Feelings of detachment or estrangement from others was also noted. The symptoms noted on examination were the following: depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, and suicidal ideation. The Board notes that additional VA treatment notes October 28, 2019, to April 13, 2021, do not contain mental health notes. The Board also finds that the Veteran's symptoms have not been of such frequency and severity to result in total occupational and a social impairment to warrant a 100 percent rating under Diagnostic Code 9411. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (stating that use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating). The criteria for a 100 percent rating include symptoms such 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. 38 C.F.R. § 4.130. In this case, the Veteran has not been found to have any of the listed symptoms. As noted above, the symptoms that the Veteran has experienced during the period of appeal include: depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, and suicidal ideation. However, those symptoms are not of such frequency and severity to result in total occupational and a social impairment to warrant a 100 percent rating under Diagnostic Code 9411. There is no doubt that the Veteran has had serious symptoms; however, a 100 percent rating requires total occupational and social impairment. As discussed above, the Veteran's symptoms from October 29, 2019, to April 13, 2021, do not reflect total social impairment. Moreover, the 70 percent rating granted herein reflects that the Veteran's symptoms are quite severe. The Board finds that the Veteran's symptoms have not been of such a level to be akin to total occupational and social impairment. While he has several symptoms from his PTSD that impact his functioning, none of them are like or similar to the type, degree, or effects suggested by those listed in the criteria for total occupational and social impairment. He reported maintaining relationships with his spouse, children and some limited relationship with his parents and siblings. He described having a few friends but does not interact with them. He was working for a propane company. While the Veteran had severe symptoms, the record did not reflect they were of such frequency and severity to more nearly approximate a total rating. Accordingly, from October 28, 2019, to April 13, 2021, the Board finds that the Veteran's symptoms of PTSD do not warrant a rating in excess of 70 percent, and the claim is denied to that extent. 2. An initial 100 percent rating for PTSD as of April 14, 2021, for PTSD. After careful review from April 14, 2021, the evidence more closely approximates total occupational and social impairment to warrant a higher 100 percent evaluation. In April 2021, the Veteran underwent a VA mental health evaluation and examination. The VA psychiatrist opined that the Veteran had total occupational and social impairment. Some of the symptoms noted on examination were the following: depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, impaired judgment, impaired abstract thinking, gross impairment in thought processes or communication, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals which interfere with routine activities, 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, and disorientation to time or place. Additionally, the VA psychiatrist wrote a mental health evaluation where he indicated that the Veteran's current 70 percent PTSD rating does not accurately note the severity of his condition at this time. He stated that it's evident the Veteran's condition has worsened. Further, the VA psychiatrist opined that the Veteran's condition is permanent in nature and unlikely to improve over time. In May 2021, the Veteran was underwent an additional VA PTSD examination. Here, the VA examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. Some of the symptoms noted on examination were the following: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a work like setting. The VA examiner stated that the Veteran is currently working full-time and has been there for one year. The Veteran also reported nightmares ongoing of combat and mild memory loss. The Board finds that the weight of the competent and credible evidence is in equipoise on whether the Veteran's PTSD warrants a 100 percent rating. Although the two VA examiners reported that the Veteran was experiencing different PTSD symptoms, the April 2021 evaluation indicates that the Veteran has reported more severe symptoms, including gross impairment in thought processes or communication, persistent delusions of 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), and disorientation to time. Affording the Veteran the benefit of the doubt, such impairment warrants a 100 percent disability rating. Accordingly, from April 14, 2021, the Board finds that the Veteran's symptoms of PTSD warrant a 100 percent evaluation, and the claim is granted to that extent. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.