Citation Nr: 21066703 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-27 929 DATE: November 1, 2021 ORDER Entitlement to a 50 percent rating, but no higher, for posttraumatic stress disorder (PTSD), prior to September 5, 2017, is granted. Entitlement to a total disability rating in excess of 50 percent for PTSD, after September 5, 2017, is denied. FINDINGS OF FACT 1. Prior to September 5, 2017, the Veteran's PTSD with insomnia disorder was manifested by occupational and social impairment with reduced reliability and productivity, including panic attacks more than once a week. 2. From September 5, 2017, the Veterans PTSD with insomnia disorder did not result in occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. Prior to September 5, 2017, the criteria for a disability rating of 50 percent for PTSD were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. From September 5, 2017, the criteria for a disability rating in excess of 50 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from November 2007 to October 2014. This case comes before the Board of Veterans' Appeals (Board) on an appeal from an April 2017 and October 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office. The Board issued a decision in June 2019 granting an increased rating for a lumbar spine disability, denying an initial rating in excess of 30 percent for PTSD with insomnia disorder prior to September 5, 2017, and in excess of 50 percent thereafter, and denying entitlement to an effective date earlier than October 27, 2016 for the award of service connection for PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Memorandum Decision, the Court set aside the Board's June 2019 decision pertaining to the increased rating in excess of 30 percent for PTSD with insomnia disorder prior to September 5, 2017, and in excess of 50 percent thereafter, and remanded the claim to the Board for readjudication. In July 2021, the Board remanded the claim for additional development. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under the General Formula for Mental Disorders, 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). The Diagnostic Code for PTSD is 9411, and it provides for evaluation of this disability under General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130. With respect to mental disorders, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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 evaluation is warranted when 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- 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; and difficulty in establishing and maintaining effective work and social relationships. 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 when 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. 1. Entitlement to a 50 percent rating, but no higher, for PTSD, prior to September 5, 2017. The Veteran seeks a rating in excess of 30 percent for his PTSD with insomnia disorder prior to September 5, 2017. The Veteran contends that he is entitled to a higher rating due to his near-continuous panic, affecting his ability to function independently, appropriately, and effectively, his impaired impulse control, difficulty adapting to stressful circumstances, and his inability to establish and maintain effective relationships. In a January 2017 mental health note, the Veteran described having nightmares about Iraq, emotional reactivity, sleep disturbances, avoidance, hypervigilance, difficulty being in crowds, and some anger and irritability. The social worker also noted he suffered from a negative outlook for the future, a sense of foreshortened future, detachment, but had no thoughts of suicide or attempts within the prior 90 days. The Veteran reported having friends in the area, working as a carpenter, and that it was his co-workers that encouraged him to get help. The Veteran presented as appropriately dressed, with normal speech, euthymic mood, appropriate affect, no evidence of hallucinations, paranoia, delusional thinking, anxiety, or cognitive defects. In February 2017, the Veteran told the social worker he only had nightmares that interfered with his sleep and activities of daily living four times a month. It was noted he had re-experiencing, avoidance, arousal, and negative cognition symptoms. Later the same month, noted in a mental health treatment plan, the social worker stated the Veteran had ongoing and chronic PTSD, with intrusive thoughts and avoidant behavior. He stated he was having poor sleep, struggling with anger issues, having bad days where he avoids people, and having some panic attacks, but feeling afraid to talk about them for fear it would bring one on. He said his panic attacks started in service, and he continued to have them, adding that they come out of the blue. He reported no inpatient treatments, no suicide attempts, no mania, no depression, but some anxiety. He appeared as having no psychosis, normal speech, intact insight, and judgment, and fully denied suicidal or homicidal ideations. In March 2017, the Veteran underwent a VA examination for his PTSD. The examiner confirmed the diagnosis of PTSD and insomnia disorder, stating that the Veteran's insomnia exacerbates his symptoms of PTSD and sleep impairment. He opined that it was likely that the Veteran's PTSD and insomnia interacted to worsen the symptoms of each diagnosis making it not possible to differentiate without speculation. The Veteran discussed having a good relationship with his parents, having a positive relationship with his natural father, a good relationship with his siblings, being married for 3 years to his second wife, and had close military friends. He talked about attending charity functions, donating to Toys For Tots, being an active caregiver for his son, and participating in his hobbies of motorcycle riding, boxing, and competitive pool. He reported no psychiatric hospitalizations, no history of suicidal behaviors, having a few panic attacks, and problems with sleep, remarking that his family and friends noticed he lost his temper easily. The examiner noted the Veteran's symptoms to be depressed mood, anxiety, suspiciousness, panic attacks more than once weekly, chronic sleep impairment, mild memory loss, and impaired judgment. The Veteran appeared adequately groomed, had no abnormalities of gait or coordination, good eye contact, was oriented, had normal speech, no evidence of delusions or obsessions, judgment and insight appeared fair, mood was described as on guard, affect was appropriate, and denied any suicidal or homicidal ideations. The examiner opined that the Veteran's occupational and social impairment was due to mild or transient symptoms which decreased his work efficiency and his ability to perform occupational tasks only during significant stress or symptoms controlled by medication. Upon review, the Board finds that a disability rating of 50 percent, but no greater, prior to September 5, 2017, is warranted. It is noted that there is some discrepancy in the record as to the frequency and severity of the Veteran's panic attacks. In February 2017 the Veteran reported during a mental health note having panic attacks and that he was afraid to talk about them because he felt it would bring one on. Then, in his March 2017 VA examination he reported having a few panic attacks with a frequency of more than once weekly. Thus, the Board finds that the probative evidence of record reflects that the Veteran experienced panic attacks occurring on, at most, more than on a weekly basis, which is considered by a 50 percent disability rating. The Board contemplated a higher rating but finds that the Veteran does not warrant a rating in excess of 50 percent. The record reflects that the Veteran does not have deficiencies in most areas due to his psychiatric symptoms. He did suffer from occupational and social impairment which decreased his work efficiency and ability to perform occupational tasks, as well as more than once a week panic attacks; however, he maintained a job, hobbies, a good relationship with his parents, siblings, and friends, and attended charity functions. He did not meet occupational and social impairment with deficiencies in most areas due to symptoms such as suicidal ideations, obsessional rituals that interfere with his routine activities, near continuous panic attacks, or neglect of his personal appearance and hygiene. In sum, the Veteran's family and social situation were stable, his employment maintained, his thinking was intact, and his hygiene and grooming were appropriate. Accordingly, the Board finds the preponderance of the evidence showed the Veteran did not have deficiencies in most areas due to his service-connected PTSD; thus, the Veteran does not meet the 70 percent occupational and social impairment. Therefore, the Board finds that a rating of 50 percent, and no higher, prior to September 5, 2017, for PTSD, is warranted. 38 C.F.R. § 4.119. 2. Entitlement to a rating in excess of 50 percent for PTSD, after September 5, 2017. The Veteran contends he is entitled to a rating in excess of 50 percent for his PTSD after September 5, 2017. As stated above, the Veteran contends that he is entitled to a higher rating due to his near-continuous panic, affecting his ability to function independently, appropriately, and effectively, his impaired impulse control, difficulty adapting to stressful circumstances, and his inability to establish and maintain effective relationships. In a September 2017 mental health outpatient note, the Veteran talked about being triggered by the civilian world, noting his co-workers were not as disciplined as his fellow soldiers were. He was found to be well-oriented, alert, appropriately dressed, having coherent and relevant speech, logical and goal-oriented thought processes, euthymic mood, and appropriate affect. There was no evidence of hallucinations, paranoia, delusional thinking, mania, anxiety, cognitive defects, or suicidal or homicidal ideations. The Veteran underwent another VA examination for his PTSD in September 2017. He was diagnosed with PTSD, generalized anxiety disorder, panic disorder, and agoraphobia. The examiner noted it was not possible to indicate the level of occupational and social impairment attributable with each diagnosis as they all contributed to difficulties in his social, familial, and occupational relationships, especially during times of significant stress. The Veteran said that he did not socialize with others often, had some friends, but had difficulty connecting with them. He described his marriage as rocky, said he had a relationship with his two children, was employed as a carpenter, and had interest in attending school to earn his welding certificate in the future. He also discussed being anxious about his family, social life, and work, experiencing restlessness, irritability, and difficulties with sleep and concentration. He stated that he experienced panic attacks once per month and was worried about having another one. He reported being employed and endorsed difficulties with building and maintaining relationships with friends and coworkers, adding he was often irritable. The Veteran was noted to suffer from intrusive memories, nightmares, flashbacks, avoidance of memories and external reminders, negative beliefs about family, social life, work, difficulty controlling his worry, experienced restlessness, irritability, difficulties with sleep and concentration, panic attacks once per month, worry about having another attack, anxiety, suspiciousness, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and experiencing sweating, heart palpitations, chest pressure, and trembling. He presented as appropriately groomed, euthymic mood, with congruent affect, normal eye contact, appropriate thought content and denied suicidal and homicidal ideations. The examiner opined that the Veteran's occupational and social impairment were due to mild or transient symptoms which decreased his work efficiency and ability to perform occupational tasks only during periods of significant stress, also noting that his symptoms were controlled by medication. She continued by saying the Veteran's PTSD difficulties led to additional difficulties with anxiety and panic attacks, which were exacerbated during times of stress. The Veteran underwent another VA examination for his PTSD in April 2018. The examiner confirmed the Veteran's PTSD diagnosis and also diagnosed him with insomnia disorder, stating it was not possible to differentiate which symptoms were attributable to each diagnosis, but that it was as likely as not that his insomnia was secondary to his PTSD. The Veteran reported having a "pretty good" relationship with his family, he spoke to his parents, brother, and cousin regularly, had been married for 5 years, albeit it had been rough, was active in his son's life, was in communication with his other children, and had some close friends. He was attending a program through his employer to earn an associate degree in construction and was still working. The Veteran denied any suicide attempts, inpatient hospitalizations, or visits to the emergency room for psychiatric reasons. He was insistent he had no suicidal intent, plans, and that he took his medications and attended group and individual therapy. He told the examiner there are days when he is not motivated, but did not have clinical depression, mania, psychosis, or obsessive-compulsive symptoms. He said his anxiety was related to his panic attacks, relaying that he had a panic attack and a breakdown at work, and had had 3-4 severe panic attacks. He also discussed having no legal problems but did engage in one unprovoked fight. The examiner noted the Veteran's symptoms to be depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, and suicidal ideations. The examiner opined that the Veteran's occupational and social impairment was demonstrated by 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 Veteran appeared adequately groomed, had no abnormalities of gait or coordination, was cooperative, had good eye contact, normal rate and volume of speech, was a good historian, linear thought processes, intact judgment and insight, and his mood was euthymic with an appropriate affect. He also noted the Veteran's level of intent to cause himself harm was passive and transient with no intent or plan, and that he did not believe the Veteran to be considered a current imminent or increased risk to himself. In an October 2019 mental health diagnostic study note, the Veteran's symptoms included problems sleeping, nightmares, intrusive thoughts, avoidance of thoughts and talks, anger and hypervigilance, startle response, and negative cognition. The Veteran reported having wished he were dead and could go to sleep and not wake up, but then denied having any actual thoughts of killing himself. Later the same month in another mental health study note, the Veteran denied ever being suicidal or homicidal. He also reported that he had not done anything, started to do anything, or prepared to do anything to end his life. He did discuss struggling with family matters and having a hard time controlling his emotions and symptoms. In a November 2019 mental health note, the Veteran reported ongoing disrupted sleep and stress, hypervigilance, and bouncing off the wall with angry outbursts. He said he had no suicidal or homicidal thoughts. Then in a January 2020 mental health note, the Veteran reported anxiety was his most prevalent problem. He also said he had depressive symptoms congruent with negative thinking, normal speech, denied suicidal or homicidal ideations, struggled with social isolation and withdrawal, exaggerated startle response, intrusive thoughts, ruminations, lack of attention, concentration, and focus, as well as nightmares, and sleep disturbances. Later in January, he presented as less anxious, cooperative, having normal speech, a little brighter mood, and appropriate affect. He denied suicidal or homicidal ideations and was deemed to not be an imminent risk to himself or others. In a March 2020 mental health note, the Veteran reported feeling overall good, but had been experiencing some odd dreams and behaviors since beginning melatonin. He reported he had several days of little interest or pleasure in doing things, but was not feeling down, depressed, or hopeless, and had no days of thinking he was better off dead. The Veteran was alert, oriented, mood was good, denied suicidal and homicidal ideations, and was experiencing overall improvement. Later the same month, he reported feeling normal, less moody, no suicidal or homicidal thoughts, was well groomed, less moody which was congruent with his affect, and his speech was normal. However, he had notable distress concerning his divorce and lack of time he spent with his son. In a December 2020 mental health note, the Veteran reported sporadic issues with anger and irritability, but denied severe issues over the past few months. His symptoms had decreased since his divorce and custody issues were finalized. He presented as well groomed, his mood was calm with a congruent affect, normal speech, denied suicidal and homicidal ideations, depression and anxiety in a mild range, and his anger and irritability had substantially decreased. In a mental health note later the same month, the Veteran reported an overall mood of just down. He was calm, had a depressed mood which was incongruent with his euthymic affect, but denied thoughts of hurting himself and suicidal or homicidal ideations. In a February 2021 mental health note, the Veteran reported he had been doing well and denied major issues regarding his mental health over the prior few weeks. He had no thoughts of being better off dead or hurting himself, was well groomed, pleasant, had an overall happy mood congruent with his euthymic affect, and had fair insight and judgment. The Veteran denied suicidal and homicidal ideations, and it was noted his mood had moderately improved over the prior two weeks. The Veteran said he was boxing daily, thinking more positively about his unemployment situation, and that he was likely going to be picking up work again soon. Then, in a March 2021 mental health note, the Veteran reported feeling overall pretty good, but also having sporadic moments of sadness and depressive symptoms with minimal effect on his occupational or social functioning. He said he had many days of feeling little interest or pleasure in doing things, feeling down, depressed, or hopeless, but had no thoughts that he would be better off dead or hurting himself. He presented as well-groomed, pleasant, calm, having a happy mood congruent with euthymic affect, normal speech, fair insight and judgment, and denied any suicidal or homicidal thoughts. It was noted the Veteran's symptoms had moderately improved since his last session, and that he was working diligently to obtain much of what he lost, reporting the future looked promising. Later the same month in a mental health note, the Veteran said he was doing better overall, but requested something stronger for his sleep problems. He told the psychiatrist that he was looking forward to working again. He, again, presented as alert, oriented, calm, cooperative, having normal speech, euthymic mood with bright and appropriate affect, having no evidence of psychosis, and denied suicidal and homicidal ideations. Pursuant to the Board's July 2021 remand, the Veteran underwent another VA examination for his PTSD in August 2021. The examiner confirmed the Veteran's diagnosis of PTSD and indicated that the Veteran did not suffer from more than one mental disorder. The Veteran discussed going through a divorce and custody dispute in 2020, was jobless and homeless, remained single, had friends that he saw 1-2 times a month, and had biweekly custody of his son. He talked about seeing a therapist every three weeks for the prior four years, seeing a psychiatrist once every six months for pharmacotherapy, not being hospitalized for psychiatric reasons, and denied attempting suicide. The Veteran said he drank with his friends twice a month, and smoked marijuana twice per day to calm himself down. His symptoms included depressed mood, anxiety, and suspiciousness. He was noted to experience flashbacks about once per month, and when he had these flashbacks, he experienced symptoms of depression, anxiety, and fatigue. He complained of persistent negative emotions such as fear that someone is out to get him, feeling detached from his friends and coworkers, and often felt irritable and verbally aggressive with anyone around. He also noted that since taking Trazodone, he is able to get 8 hours of uninterrupted sleep every night. He presented with good hygiene and grooming, good eye contact, normal speech, linear and reality-based thinking, with no psychosis or delusions observed. He denied suicidal and homicidal ideations and confirmed that he remained compliant with his psychiatric medications. The examiner determined that the Veteran suffered occupational and social impairment due to mild or transient symptoms which decreased work efficiency and his ability to perform occupational tasks only during periods of significant stress. He noted that the Veteran said he avoided distressing memories, thoughts, or feelings by smoking marijuana, and that he avoids people, places, conversations, activities, objects, or situations that arouse distressing memories, thoughts, or feelings, particularly people who want to discuss his military experience. However, the examiner mentioned that this contradicted his statement that he goes to restaurants or the movie theater twice a month. The Veteran reported being at his job for the past 2 years, and that he had not had any disciplinary trouble or fears that he would be fired because of uncontrolled mental health issues. The examiner opined that the Veteran did not have clinically significant impairment in his occupational functioning. Yet, he had mild impairment with social functioning, but it did not appear to be a clinically significant impairment that interrupted his daily living. The psychologist also noted that the Veteran no longer met the criteria for insomnia disorder because he reported since taking his medications, he was getting 8 hours of uninterrupted sleep, waking up refreshed, and he denied any clinical impairment in functioning due to insomnia. The doctor opined that despite endorsing very distressing symptoms, there did not appear to be significant clinical impairment in social or occupational functioning, stating that the Veteran still suffers from a PTSD diagnosis, but his ability to function successfully in his daily life appeared to be more than adequate. The Board has acknowledged that in an April 2018 VA examination, the examiner noted the Veteran had suicidal ideations that were passive and transient thoughts with no intent or plans, concluding he should not be considered a current imminent or increased risk to himself or others, and that later, in an October 2019 mental health note, the Veteran expressed wishing he were dead and could go to sleep and not wake up, later denying having any actual thoughts of killing himself. In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), Court held that the language of the General Rating Formula "indicates that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas." However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran's service-connected psychiatric disability, and their resulting social and occupational impairment. In this regard, the contemporaneous treatment records and VA examination reports reflect that the Veteran consistently denied experiencing any suicidal or homicidal ideation throughout the appeal period. Further, while the Veteran reported the feeling of wishing he were dead in his October 2019 mental health note, the entirety of the record does not reflect that nature, frequency, severity, and duration of such symptomatology resulted in, at most, occupational and social impairment with reduced reliability and productivity. The Board finds that a rating in excess of 50 percent after September 5, 2017, is not warranted. The records do not reflect the Veteran meets the 70 percent disability rating. While the Veteran had weekly or more often panic attacks, sleep disturbances, difficulty in his marriage, difficulty in establishing and maintaining effective work and social relationships, he has still maintained friendships, a relationship with his children, a good relationship with his family, hobbies including working on cars and motorcycles, boxing, and playing video games. During the course of treatment, the Veteran always presented as cooperative, never discussed having near-continuous panic or depression affecting his ability to function independently, was alert and oriented, presented with appropriate hygiene and grooming, normal speech, and did not present with an inability to establish and maintain effective relationships. The Veteran reported one incident of an unprovoked fight and having irritability, but it was noted he had been working without any disciplinary actions, was taking classes at one point to further his career options, and even showed a decrease in the severity of his symptoms. Also, an examiner opined that the Veteran no longer met the criteria for insomnia and that he did not suffer significant clinical social or occupational impairment. Thus, the Veteran did not meet occupational and social impairment with deficiencies in most areas. The preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 70 percent rating, after September 5, 2017. Therefore, (Continued on the next page) the criteria for a 70 percent rating, after September 5, 2017, are not met and the appeal must be denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Doerfler, 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.