Citation Nr: 21066396 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-46 710 DATE: October 29, 2021 ORDER For the period prior to June 2, 2017, entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with unspecified depression is denied. For the period from June 2, 2017, entitlement to an initial disability rating in excess of 70 percent for PTSD with unspecified depression is denied. FINDINGS OF FACT 1. For the period prior to June 2, 2017, the Veteran's PTSD with unspecified depression has most closely approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. For the period from June 2, 2017, the Veteran's PTSD with unspecified depression has most closely approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; total occupational and social impairment is not shown. CONCLUSIONS OF LAW 1. For the period prior to June 2, 2017, the criteria for an initial disability rating in excess of 30 percent for PTSD with unspecified depression are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2020). 2. For the period from June 2, 2017, the criteria for an initial disability rating in excess of 70 percent for PTSD with unspecified depression are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to November 1970. This appeal is before the Board of Veterans' Appeals (Board) from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD and assigned a 10 percent rating effective from May 28, 2014. In an August 2017 rating decision, the RO increased the disability rating to 30 percent disabling, effective from May 28, 2014. In June 2019, the Board remanded the claim for further development of the record. In an August 2020 rating decision, the RO increased the disability rating to 70 percent disabling, effective from June 2, 2017. A May 2021 rating decision continued the 70 percent rating for PTSD, but granted a TDIU rating effective from October 30, 2020. The Board notes that the most recent supplemental statement of the case (SSOC) was issued in August 2020. In October 2020, the Veteran filed a formal clam for a TDIU rating based on all service-connected disabilities. The RO conducted additional development in association with the TDIU claim which included procuring a May 2021 VA PTSD examination and up-to-date VA treatment record. The RO did not issue another SSOC, but, rather, readjudicated the claim for a higher rating for PTSD in the May 2021 rating decision. Although a SSOC should have been issued, due process concerns have been satisfied as the RO did consider the May 2021 examination report and VA treatment records in the first instance and reconsidered the claim for a higher rating. The rating decision served the purpose of an SSOC as it reflects adjudication of the claim based on the consideration of the new, relevant evidence. As the Veteran would not substantially benefit from the mere formality of issuing an SSOC restating the reasons and bases contained in the May 2021 rating decision, the Board finds that a remand for the RO to issue an SSOC would serve no useful purpose and would merely delay the Board's adjudication of the Veteran's claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. June 18, 2015) ("A veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution."). The Board will therefore adjudicate the claim for an increased rating for PTSD. Concerning entitlement to a TDIU due to service-connected disabilities, as noted, the May 2021 rating decision granted entitlement to a TDIU effective October 30, 2020, the date that VA received a formal claim for TDIU. To date, the Veteran has not disagreed with the effective date assigned by the May 2021 rating decision. At the time of the October 30, 2020, claim for entitlement to a TDIU, the issue of entitlement to a higher initial rating PTSD was pending. The Board notes that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Concerning any claim for entitlement to a TDIU in connection with the increased initial rating issues on appeal, the evidence of record prior to October 30, 2020, does not reasonably raise a claim of TDIU due to the increased rating issues on appeal and the Board finds that a claim for TDIU was not raised pursuant to Rice, id., prior to October 30, 2020. In this respect, the Veteran's October 30, 2020, formal application for entitlement to a TDIU noted his inability to work due to all disabilities. He did not indicate a specific date upon which such disabilities affected his full-time employment, nor did he indicate when he became too disabled to work. Rather, he indicated that he was last employed on a full-time basis in from 1970 to 2013 (at which time he retired) and that he did not leave this employment because of his disability (or disabilities). As noted in detail below, the evidence of record shows that the Veteran voluntarily retired in July 2013 after 40 years of employment with the same company and remained unemployed by choice thereafter. The Veteran has never otherwise asserted that, prior to October 30, 2020, he was unable to obtain gainful employment as a result of his PTSD or that the PTSD impacted his ability to work. Thus, the Board does not find that the evidence of record reasonably raised a claim for TDIU in connection with the issue on appeal. Therefore, entitlement to a TDIU prior to October 30, 2020, is not on appeal and will not be discussed herein. Increased Ratings Applicable Law and Regulations Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. 1. Entitlement to an initial rating in excess of 30 percent prior to June 2, 2017, for PTSD with unspecified depression. The Veteran's PTSD with unspecified depression is currently evaluated as 30 percent disabling from May 28, 2014, to June 2, 2017, under Diagnostic Code 9411. 38 C.F.R. § 4.130. The relevant evidence for the period on appeal prior to June 2, 2017, consists of a January 2016 VA PTSD examination report and VA treatment records dated from May 2013 to March 2017. VA mental health treatment records dated from May 2013 to March 2017 reflect that the Veteran was consistently alert, oriented, and well-groomed with appropriate personal hygiene. There was no evidence of psychosis, delusions, or suicidal/homicidal ideations. His memory was intact for recent and remote personal history. His sleep was "horrible," and he endorsed nightmares, flashbacks, and depression. His affect ranged from appropriate, to sad, to flat. His energy and motivation were sometimes poor. He admitted to some feelings of hopelessness/worthlessness. His memory was estimated as grossly intact for recent and remote personal history. He endorsed low motivation, "occasional" panic attacks and anxiety (especially in crowds), hyperarousal, hypervigilance, difficulty leaving the house, angry outbursts, irritability, sleep impairment, and nightmares. Insight and judgment were consistently noted as "good." He was married to his spouse of 44 years. His hobbies included fishing, hunting, cooking, and traveling/camping with his wife in their RV. He reported that he was retired as of July 2013. He endorsed difficulty filling his time since retirement with increased anxiety. His support system included his wife and daughters, as well as a "battle buddy" in California. The Veteran underwent a VA PTSD examination in January 2016. At that time, the examiner described occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran stated that was married with three adult daughters and many grandchildren. He enjoyed fishing and playing golf. He had several friends and recently met someone to play golf with. The Veteran obtained his GED and attended some college. He started working as a lineman with a power company but sustained an injury (fell off pole) and did meter reading and collections thereafter. He sustained employment for 40 years and was currently retired. He received mental health treatment from a VA social worker and a psychiatrist. Medication included mirtazapine for sleep. He reported some anxiety in crowds. Current symptoms included sleep impairment, depressed mood, and anxiety. Objectively, the Veteran was anxious, and his affect was mood congruent. His thought processes were logical, linear, and goal-directed. There was no evidence of a psychotic process. He was not suicidal or homicidal. Analysis The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher for the period prior to June 2, 2017. In this case, the evidence does not demonstrate that the Veteran's PTSD with unspecified depressive disorder resulted in more than 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 normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events) as contemplated by the 30 percent rating assigned for the period prior to June 2, 2017. In reaching this conclusion, the Board observes that the evidence demonstrates the Veteran's psychiatric disorder was primarily manifested by symptoms of anxiety, depressed mood, chronic sleep impairment, panic attacks (weekly or less). These symptoms are expressly contemplated by the current 30 percent rating assigned. His reports of hypervigilance are also reasonably contemplated by, or akin to, the symptoms of anxiety and suspiciousness also noted in the 30 percent rating criteria. The Board further acknowledges that the Veteran experienced some symptoms that closely align with 'disturbances of motivation and mood,' which would be contemplated by a 50 percent rating. Indeed, the Veteran endorsed low motivation, irritable behavior, and angry outbursts. However, the Board does not find that these symptoms occurred with the same (or similar) severity, frequency, and duration of the listed symptom(s) associated with a 50 percent rating. See Vazquez-Claudio, supra. The Veteran endorsed these symptoms only on occasion and the relevant evidence does not reflect that they rose to the severity contemplated by the next higher rating. See, e.g., May 2015 VA Psychiatry Initial Assessment Note (noting that his energy and motivation are "sometimes poor"); see also November 2015 VA Psychiatry Note (noting that the Veteran ranking his irritability at a 4/5 out of 10); and June 2015 VA Mental Health Note (noting that the Veteran recognizes that he needs to work on his patience and his behaviors when upset). Moreover, the 2016 VA examiner, who evaluated the Veteran and reviewed the evidentiary record for this period, determined that the Veteran's overall level of occupational and social impairment was best characterized as "mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment" which is consistent with a 10 percent (not 30 percent rating) disability rating. The examiner's assessment is probative as he is a licensed psychologist with the expertise to assess the nature and severity of the Veteran's psychiatric impairment. With respect to social impairment, in particular, the Board notes that the Veteran had been married to his wife of over 40 years and maintained relationships with his adult daughters and grandchildren. He enjoyed fishing and golf. Occupationally, the Veteran chose to retire from an energy company after 40 years of employment in July 2013. Applying a holistic analysis of the Veteran's PTSD symptoms prior to June 2, 2017, the Board finds that the nature, frequency, and severity of his symptoms do not result in reduced reliability or productivity in terms of occupational and social functioning so as to warrant the next higher rating of 50 percent. Rather, the nature, frequency, and severity of his PTSD symptoms more closely align with the criteria associated with a 30 percent rating. Generally, he functions satisfactorily. Accordingly, the preponderance of the evidence weighs against the claim; there is no doubt to be resolved; a rating in excess of 30 percent for PTSD with unspecified depression is not warranted for the period prior to June 2, 2017. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to an initial rating in excess of 70 percent from June 2, 2017, for PTSD with unspecified depression. The relevant evidence for the period on appeal from June 2, 2017, consists of December 2017 and May 2021 VA PTSD examination reports, VA treatment records dated from June 2017 to the present, and statements from the Veteran in support of his claim. VA treatment records dated from June 2, 2017, to the present reflect ongoing complaints of nightmares, poor concentration, anxiety, intrusive thoughts, avoidance, hypervigilance, poor sleep, anxiety, depressed mood, and emotional numbing. He was consistently alert, oriented, and appropriately groomed. No auditory or visual hallucinations were reported. His insight and judgement were good. Memory was sufficient/adequate/fair. Thinking was logical. Speech was normal. Medications included Bupropion SA, Mirtazapine, Hydroxyzine, and melatonin. He consistently denied homicidal ideation. Recreational activities/hobbies included golf. His support system was described as "family." The Veteran reported that he was managing his temper at home. The Veteran remained married to his wife of 50 years and denied having marital problems. He stated that he "likes being retired." He stated that he had some camping trips planned on a monthly basis which "seems to help him to get away and to feel differently." On one occasion, in June 2017, the Veteran stated that he had thoughts of suicide recently, which were related to his spouse's recovery from surgery and remembering loss of friend from Vietnam. The Veteran stated that he could not shoot himself but would park car in garage, close garage up and start the car until he fell asleep. He denied wanting to complete this plan. However, the following month, in August 2017, he denied any suicidal ideation or thoughts as he expressed back in June. There are no other instances of reports of suicidal ideation in the record. On one occasion, also in June 2017, he reported having "some problems with short term memory (i.e., could not remember recent conversations where plans were made) and an inability to stay focused on anything for more than 30-45 minutes. He endorsed occasional flight of ideas and talkativeness, but denied impulsivity, grandiosity, and decreased need for sleep. The Veteran underwent a VA PTSD examination in December 2019. There was occupational and social impairment with reduced reliability and productivity. The Veteran reported being married to his wife since 1968; he had 3 daughters and grandchildren. He stated that he bought a travel trailer and that he and his wife go to state parks where it is very quiet (he stays in the farthest site to avoid people). He reported having a friend that he used to fish with (coworker-1-2 time a month now, used to be weekly). He stated that he was retired and "doesn't like to do much now as he doesn't like to leave home. Current symptoms included depression, anxiety, panic attacks that occur weekly or less often (not often), chronic sleep impairment, disturbances in motivation/mood, and difficulty in establishing and maintaining effective work and social relationships. Objectively, the Veteran was oriented (x4); mood was passive; affect was restricted; thought content was future oriented; speech rate/tone was average; thought process was linear; homicidal/suicidal ideations and hallucinations were denied; there were no delusions; attention and concentration were within normal limits; insight and judgment were fair to good; and memory was within normal limits. Other attributable symptoms were described as follows: "He reports that he has anxiety attacks. Lacks motivation to do anything (i.e., used to love to mow the lawn and now he will procrastinate until he can no longer put it off). Avoids people, i.e., in Walmart (crowded areas). He is impacted by his back and this can get him down...He takes a camping stool with a back rest so he can go out in nature as he does enjoy that." He reported that his sleep medications used to knock him out and he would sleep all night but now he is up 2-3 times a night and nightmares are returning. Anxiety was described as situational when he goes out or when the family comes over and minimizes socializing. Depression was described as depressed mood, sleep disturbances, decreased concentration, and decreased interest in pleasurable activities. There was no thought insertion, thought broadcasting, ideas of reference, auditory hallucinations, visual hallucinations, delusions or illusions. There was no history of or recent manic/hypomanic symptoms such as hyposomnia, increased goal directed behavior, flight of ideas, increased risk taking behavior, irritability, grandiosity, or distractibility. The PTSD did not compromise his ability to complete all ADLs without assistance, such as feeding, grooming, bathing, walking, etc. The Veteran reported no problems with instrumental activities of daily living (IADLs), such as managing finances, shopping, handling transportation (driving or navigating public transit), managing medications and/or housework and basic home maintenance. The Veteran underwent another VA PTSD examination in May 2021. At that time, there was occupational and social impairment with reduced reliability and productivity. PTSD symptoms include depressed mood, panic attacks weekly or less, sleep impairment, flattened affect, mild memory loss, disturbances in motivation/mood, and difficulty in establishing/maintaining effective work and social relationships. The Veteran continued to reside in his home in Inverness where he had resided for 30 years with his wife of 53 years. He reported having a "happy" marriage and was close with his three daughters. He indicated he enjoyed his family "but I don't conversate." He preferred to isolate and did not socialize with friends. The Veteran stated that he was unmotivated and sat in his garage all day. Relevant mental health history included depression, anxiety, restlessness, intrusive memories, avolition, guilt, exaggerated startle, and poor sleep. He was prescribed Trazadone, Buspirone, Bupropion and Hydroxyzine for his mental health issues. He presented alert, oriented and appropriately groomed. Eye contact was intermittent, speech clear, thoughts linear, and affect flat. Mood was reported as depressed. Perceptual disturbance was denied. Suicidal ideation, intent and plan were denied. The Veteran reported mild issues with short term memory, however, no overt cognitive impairment was noted within the examination. Symptoms of PTSD with unspecified depressive disorder were notes as: depressed mood; anxiety; panic attacks that occurred weekly or less often; chronic sleep impairment; mild memory loss (such as forgetting names, directions or recent events); flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. With respect to employment, the examiner noted that the PTSD resulted in intrusive thoughts which interfered with ability to stay focused on task at hand; significant difficulty functioning around other people, as a team member, and feels uncomfortable around others; and depressed has difficulty sustaining energy and motivation to complete assignments at work. Analysis In this case, the evidence does not demonstrate that the Veteran's PTSD with unspecified depressive disorder results in total occupational and social impairment for the period beginning June 2, 2017. Indeed, at no point does the record indicate such severe impairment as total occupational and social impairment, or symptoms of the nature or severity of gross impairment in thought process 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, or memory loss for names of close relatives, own occupation, or own name. The Veteran has consistently been described as fully oriented and well/adequately groomed; he has denied hallucinations/delusions on numerous occasions throughout the record; and he retains some ability to function in a social environment. He remains married to his wife of over 50 years and maintains close relationships with his adult daughters. He has denied having marital problems. As of January 2019/April 2019, the Veteran reported that he enjoyed being retired and that he engaged in hobbies such as golf. Although the Veteran has reported experiencing occasional angry outbursts, as well as suicidal ideation on one occasion in 2017, he has never been described as a persistent danger to himself or others. The occasional memory loss endorsed by the Veteran has been described as "mild" in nature and has never been shown to result in severe cognitive impairment or the inability to remember his own name or those of close relatives. Likewise, while the Veteran reported "occasional flight of ideas," his thought processes have been largely noted as linear and goal-directed by VA mental health professionals throughout the relevant appeal period. The May 2021 VA expressly indicated that the Veteran's PTSD did not compromise his ability to complete ADLs. In short, the gross impairment resulting in severe disorientation of the individual which is contemplated by the 100 percent rating criteria is simply not evident in this case at any time. Applying a holistic analysis of the Veteran's PTSD symptoms from June 2, 2017, the Board finds that the nature, frequency, and severity of his symptoms do not result in total occupational and social impairment so as to warrant the next higher 100 percent rating. Rather, the nature, frequency, and severity of his PTSD symptoms more closely align with the criteria associated with a 70 percent rating. Accordingly, the preponderance of the evidence weighs against the claim; there is no doubt to be resolved; an initial rating in excess of 70 percent for PTSD with unspecified depression is not warranted for the period from June 2, 2017. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hoeft 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.