Citation Nr: A21016902
Decision Date: 10/19/21	Archive Date: 10/19/21

DOCKET NO. 210615-166143
DATE: October 19, 2021

ORDER

Entitlement to an earlier effective date for post-traumatic stress disorder (PTSD) is dismissed.

Entitlement to a rating greater than 70 percent for PTSD is denied.

REMANDED

Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. In September 2021, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim for an earlier effective date for PTSD. 

2. The Veteran's PTSD symptoms caused occupational and social impairment with deficiencies in most areas, but his symptoms were not of the severity, frequency, or duration to cause total social and occupational impairment.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the claim for entitlement to an earlier effective date for PTSD have been met. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 20.205.

2. The criteria for a rating greater than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from September 1966 to September 1968.

In February 2020, following issuance of a December 2019 Statement of the Case (SOC), the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA). This law became effective February 19, 2019; and creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. See 38 C.F.R. § 19.2.

Upon opting into the AMA, the Veteran requested a higher-level review, and a rating decision was issued in June 2020. The Veteran appealed this decision and elected the Evidence Submission option by filing a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD). Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with the VA Form 10182 or within 90 days of receipt of the VA Form 10182. 38 C.F.R. § 20.3.

Withdrawal of Claim

1. Entitlement to an earlier effective date for PTSD.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (d)(5). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 

Here, the Veteran's attorney submitted a withdrawal in September 2021 written correspondence as to the claim for an earlier effective date for PTSD. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review that claim and the claim is dismissed.

Increased Rating

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

2. Entitlement to a rating greater than 70 percent for PTSD.

The Veteran's PTSD has been assigned a 70 percent rating and evaluated under Diagnostic Code 9411. Diagnostic Code 9411 uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. 

Under the General Rating Formula, a 70 percent evaluation is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411.

The maximum schedular rating of 100 percent is warranted when there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411.

When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 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; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118.

In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b). 

The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Factual Background

A review of the evidence shows the Veteran received a PTSD VA examination in January 2017 where he was diagnosed with PTSD. He reported that he resides with his wife and has three children and one stepchild. He also reported that he has one or two close friends, and that PTSD impacts his relationship with his grandchildren. Occupationally, the Veteran reported that he is currently employed as a truck driver since 2000. He indicated that sleep impacts his work performance, and he has anger problems.

The examiner noted symptoms of depressed mood, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. His mental status examination showed the Veteran was alert, oriented, and cooperative with the exam. His mood was euthymic, and affect was full range. The Veteran's speech was fluent and normal, and he recalled three words at five minutes with prompting. The examiner found that the Veteran's symptoms cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

In a March 2017 VA mental disorders examination, a different VA examiner also found that the Veteran's PTSD symptoms cause occupational and social impairment with occasional decrease in work efficiency. It was noted that much of the Veteran's history had not changed since his last examination. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted additional symptoms to include nightmares, intrusive thoughts, avoidance, cognitive/emotional distortions, and increased arousal. However, the Veteran denied current suicidal/homicidal intent or plan.

In an August 2019 PTSD VA examination, the Veteran reported that he lives with his wife of 41 years and noted stress secondary to caring for her as she began exhibiting signs of Alzheimer's disease. The Veteran indicated that he is able to perform most of the chores around the home and activities of daily living (ADLs) without difficulty. He reported that he looks forward to visits from his children and grandchildren; however, he noted intermittent tearfulness and sadness but still gets pleasure from watching sports on TV, going out for leisurely drives, and going out to eat. The Veteran reported intermittent concentration and disturbances; but indicated that he assists the teacher at church, and he is able to prepare his lessons weekly. The Veteran also reported difficulty in crowds, difficulty with loud unexpected noises, and intermittent daytime sedation. Occupationally, the Veteran reported that he operates his local trucking business at least twice weekly. He denied difficulties with short, local deliveries.

With regard to mental health treatment, the examiner noted the Veteran has not been seen at VA for mental health since 2017 and he was not on medications at the time. However, the Veteran reported having once a month group therapy in an outpatient setting. He reported chronic symptoms of PTSD but denied auditory hallucinations. He noted intermittent visualizations of spots, but he denied occurrences of "people like skeletons" as reported in an April 2019 private examination. The Veteran reported fleeting suicidal ideations several months ago but without clear intent or plan. 

The examiner noted symptoms of depressed mood, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner found that his symptoms cause occupational and social impairment with reduced reliability.

In addition to the above VA examinations, the Veteran was also evaluated by a private examiner. In October 2016 written correspondence, his private examiner diagnosed the Veteran with PTSD and severe depression secondary to PTSD. The examiner noted that the Veteran has episodic thoughts of killing himself, flashbacks, and episodes of disorientation to time and place.

Additionally, in an October 2017 written report, the private examiner indicated that she has treated the Veteran for PTSD and depression since September 2016. The examiner noted that the Veteran's depression has persisted and remains in the extreme range despite good compliance with medication and treatment with the examiner and VA. The examiner further noted symptoms of depressed mood, anxiety, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, episodic hallucinations, and disorientation to time and place. In subsequent April 2019, August 2019, and July 2020 examinations, the private examiner continued to find that the Veteran's depression persists in the extremely severe range, he has thoughts of killing himself, and that his symptoms cause total occupational and social impairment.

Analysis

Based on the above and remaining evidence, the Board finds a total 100 percent rating is not warranted as the evidence does not show that the Veteran is totally impaired socially and occupationally.

In support of the Board's conclusion, the Board initially notes that the Veteran and his attorney rely on the Veteran's private examiner finding that the Veteran experiences total occupational and social impairment due to episodes of disorientation to time and place, episodes of suicidal ideation, persistent episodes of visual and auditory hallucinations, persistent depression, and deficiencies in the areas of work, family relations, judgment, thinking and mood due to such symptoms as depression. With regard to symptoms that could signify total impairment, the private examiner specifically noted in an October 2016 written correspondence that the Veteran has flashback episodes that cause him to feel like he is in Vietnam, which she equated to being disoriented to time and place. She further noted the Veteran has recurrent distressing dreams of combat events from which he wakes disoriented to time and place. The examiner further noted the Veteran reported visual hallucinations during which he sees "little things... bugs, snakes." And, in his October 2017 private examination, it was noted that he hears gunshots and that he sees "something cross out in front of him." Further, the examiner consistently found in her examinations of the Veteran that he has thoughts of suicidal ideation. 

While these symptoms can contribute to total occupational and social impairment, the Board finds, however, that the Veteran's symptoms were not of the severity, frequency, or duration to warrant a total rating and have been inconsistently reported. For example, contrary to the private examiner's October 2016 report, VA treatment records show that in October 2016, the Veteran requested a mental health referral with VA for PTSD and severe depression. During a telephone encounter with a social worker on the same day, the Veteran reported having nightmares, stress, lack of energy, isolation, guilt, and trouble staying asleep, but there were no reports of hallucinations and he denied suicidal ideation, nor was there any indication that the Veteran was disoriented to time or place.

In an October 2016 follow up visit, a suicide risk assessment showed that the Veteran reported passive and infrequent thoughts and denied intent or plan. He further reported that he would never harm himself because he loves his grandchildren too much. Mental status examination showed the Veteran was alert and oriented, with a calm mood/affect. He was neatly dressed and groomed with no evidence of a thought disorder. The Veteran denied experiencing any suicidal/homicidal ideations, hallucinations, or delusions. Rather, the Veteran reported having nightmares once a week. He reported past outpatient treatment from 2004 to 2008 and indicated that he was not currently taking medications.  Although he requested a referral to a PTSD group, he declined medication at that time.

Similarly, in a November 2016 mental health visit, it was noted that the Veteran was neatly dressed and groomed. He was found to be alert and oriented with a calm mood/affect. There was no evidence of a thought disorder, and the Veteran denied experiencing any suicidal/homicidal ideations, hallucinations, or delusions. Instead, the Veteran reported that he is doing okay and would like to work on his relationship with his children, which he reported was the biggest thing that affects his mood.

A subsequent November 2016 mental health note shows the Veteran requested to try medication for depression. The Board notes that in a November 2016 follow-up visit, the Veteran reported that he did not feel his depression and anger were getting better as he reported having arguments with his wife. However, he also reported his anger scores were high due to driving at his job and financial stresses. In addition, shortly thereafter, he reported in a December 2016 mental health visit that he was doing well and that he spent Thanksgiving in Georgia. He further reported using the STOPP method when feeling tension in his body that week, and that he has been monitoring his thinking and replacing negative thoughts with positive ones. Moreover, he stated that therapy has made him more aware of what he is feeling and has helped him to cope better. 

Further, in a January 2017 mental health visit, the Veteran was found to be alert and oriented with a calm mood/affect. Again, he denied suicidal/homicidal ideations, hallucinations, or delusions, and reported doing fairly well. Although he indicated that he still does not enjoy crowds, he stated that he has learned to cope with it and reported improvement since coming in for individual sessions. The Veteran identified outlets such as spending time with his grandkids and family, and reported he no longer just focuses on work, but makes time to spend with his family which has helped to improve his mood. The Veteran thanked the social worker for her help and reported no other concerns at that time. He informed the social worker he would call should he feel the need for a follow up appointment. Subsequent records show that the Veteran received no further mental health treatment or medications.

Consistent with these findings is the Veteran's January 2017 PTSD examination where the examiner noted the Veteran was alert, oriented, and cooperative with the exam. He was found to have symptoms of depressed mood, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood; but there were no reports of hallucinations or suicidal ideation. Likewise, in his March 2017 VA mental disorders examination, the Veteran denied current suicidal/homicidal intent or plan; and, in his August 2019 VA PTSD VA examination, he denied auditory hallucinations. Although he reported intermittent visualizations of spots, he denied occurrences of "people like skeletons" which he otherwise reported with his private examiner. All three VA examiners found that, overall, the Veteran's symptoms cause no more than occupational and social impairment with reduced reliability, which is consistent with a 50 percent rating.

In addition to the above inconsistencies, the Board also notes that there is question as to whether the Veteran received additional private treatment as asserted by the Veteran, his attorney, and his private examiner. In this regard, the Board notes that the private examiner indicated that she has treated the Veteran since September 2016. The Veteran's attorney also noted in September 2021 correspondence that the private examiner treated the Veteran over a period of years, and the Veteran testified in his May 2019 decision review officer (DRO) hearing that he attends a monthly meeting with the same examiner. However, while several evaluations of the Veteran were provided by the private examiner and/or the Veteran's attorney, there have been no other private treatment records submitted for the Board's consideration. 

Notably, VA attempted to retrieve these records in July 2019 by requesting the Veteran complete VA Forms 21-4142 and 21-4142(a) which would allow VA to obtain these records on behalf of the Veteran; however, the Veteran did not provide the authorization or a release. Although the Veteran's attorney acknowledged in an August 2019 written correspondence that he received VA's request, neither the attorney nor the Veteran obliged VA's request for authorization to obtain the records. Instead, the Veteran's attorney submitted an April 2019 Disability Benefits Questionnaire (DBQ) completed by the private examiner. The Board further notes that in December 2019, VA attempted to assist the Veteran again by requesting that the Veteran submit any additional treatment records related to his conditions, but the attorney responded that they have nothing further to submit. Therefore, the Board finds VA has satisfied its duty to assist in this regard. The Board notes, however, that the Veteran's and his attorney's noncompliance leaves the Board with no records to review and compare to the VA treatment records available, and no way of verifying the existence of the purported treatment records. 

In addition to the above, the Board also notes that the private examiner's opinions appear to be based on inaccurate facts. For example, in the private examiner's October 2017, April 2019, August 2019, and July 2020 examinations, she opined that the Veteran's symptoms cause total occupational and social impairment despite good compliance with treatment and medication. However, there is no evidence that indicates the Veteran was receiving treatment or medication at the time the private examiner issued her opinions. VA treatment records show that the Veteran was prescribed trazodone for depression in November 2016, which was issued in February 2017. However, subsequent medical records do not show that the Veteran received additional prescriptions or refills of this medication, nor was he prescribed any other psychiatric medication thereafter. Consistent with this finding is the Veteran's August 2019 PTSD VA examination where the examiner noted the Veteran has not been seen at VA for mental health since 2017, nor was he on medications at the time. Moreover, none of the examinations submitted by the private examiner indicate the Veteran was prescribed medication by her, and no additional records have been submitted to substantiate that the Veteran received additional treatment or therapy by any other private clinician. 

Furthermore, although the private examiner has consistently found that the Veteran has total social and occupational impairment due to PTSD and major depression disorder, a VA examiner found in an August 2019 addendum opinion that the Veteran has PTSD with symptoms of hyperarousal, sleep disturbances, intermittent concentration disturbances, avoidance of crowds, and difficulty with loud unexpected noises, but not symptoms consistent with major depressive disorder. Even if the Veteran was found to have a diagnosis of depressive disorder, the private examiner found that this condition is secondary to PTSD; if it is determined to be a manifestation of his service-connected PTSD it cannot be separately service-connected. See Brady v. Brown, 4 Vet. App. 203 (1993) (addressing whether a veteran may receive separate ratings for a psychiatric disorder and physical symptoms associated with that disorder); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (citing the application, in Brady, of an "exception to the rule that all disabilities are to be rated separately"). Moreover, despite the private examiner's reports of persistent depression, VA treatment records show the Veteran had a negative depression screen in April 2019; and, in his May 2019 DRO hearing, the Veteran attributed his depression to lack of sex with his wife due to his prostate condition. 

Given the above, the Board finds the examinations and opinions of the private examiner offer low probative value as they were based on inaccurate facts and have been inconsistent with the Veteran's VA treatment records, VA examinations, and the Veteran's own statements. In this regard, the Board has also considered the interest of the Veteran in determining credibility. See Pond v. West, 12 Vet. App. 341, 345 (1999). Moreover, assuming arguendo that the Veteran exhibited symptoms of severity such as hallucinations, suicidal ideation, and/or disorientation, these symptoms were not of the severity, frequency, or duration to warrant a total rating. In addition to the above findings, an April 2019 treatment note shows the Veteran had a negative PTSD screen. In fact, the Veteran's PTSD was noted as stable and the Veteran reported that he was doing okay. Similarly, in his August 2019 PTSD VA examination, the Veteran reported that he is able to care for his wife, perform most of the chores, and prepare his weekly church lesson despite intermittent concentration and disturbances. He further reported that he looks forward to visits from his children and grandchildren, he goes out for leisurely drives, and he goes out to eat, all of which clearly show that the Veteran is not totally impaired, even without the benefit of therapy or medication. 

For the foregoing reasons, the Board finds the preponderance of evidence is against the claim and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the claim for a higher rating for PTSD is denied.

REASONS FOR REMAND

1. Entitlement to a TDIU is remanded.

Under the AMA, the Board must remand a claim to correct an error by AOJ to satisfy its duty to assist the Veteran under 38 U.S.C. § 5103A, if the error occurred prior to the AOJ decision on appeal. 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a).  The Board may also remand a claim to correct any other AOJ error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim. 38 C.F.R. § 20.802(a).

In the Veteran's case, the record shows that in an October 2019 and September 2021 VA Form 8940, Application for TDIU, the Veteran reported that he was self-employed as a truck driver until 2017, earning $2,500.00 per month. However, in a November 2019 written correspondence, the Veteran indicated his earnings for the last twelve months of employment include gross earnings of $70,000, and net earnings of $24,000. This finding suggests that the Veteran was also employed in 2018, which is contrary to his VA Form 8940. In addition, the evidence suggests that the Veteran was gainfully employed given that his earnings were over the poverty threshold. Nevertheless, as there is a discrepancy with regard to the Veteran's employment history for the remainder of the appeal period wherein the Veteran may still qualify for TDIU, remand is warranted to verify the Veteran's employment status during the entire period on appeal.  

The matters are REMANDED for the following action:

1. Ask the Veteran to complete an updated VA Form 21-8940.

2. Obtain all appropriate information regarding the Veteran's past employment from 2017 to the present.

3. Then, readjudicate the claim for TDIU.

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Laffitte, Associate 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.