Citation Nr: 21067165 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 13-12 319 DATE: November 3, 2021 ORDER Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) on or after March 4, 2009 is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran's symptoms has not more closely approximated occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation in excess of 50 percent for PTSD has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 2002 to November 2002 and from December 2003 to August 2005. The Veteran most recently completed a period of active duty from January 2020 to January 2021. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter has a long procedural history; in May 2018, the Board issued a decision that in relevant part denied the Veteran's claims for an initial disability rating higher than 50 percent for PTSD and service connection for a left ankle condition. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC), which resulted in a Memorandum Decision that vacated those portions of the Board's May 2018 decision relating to these claims and remanded those matters to the Board. Specifically, CAVC found the Board erred when it discounted the Veteran's reports of suicidal ideation, failed to discuss the May 2009 VA examiner's finding that the Veteran's obsessional rituals interfered with his daily life, and failed to explain why the Veteran's reports of auditory hallucinations did not support a disability rating greater than 50 percent for PTSD. In June 2020, the Board remanded these matters for additional development. In a July 2021 rating decision, the RO granted service connection for the left ankle, which constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, this matter is no longer in appellate status. The Board finds that there has been substantial compliance with the Board remand directives as they pertain to the claim for an initial rating greater than 50 percent for PTSD. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Legal Criteria for Rating Disabilities Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Pursuant to Diagnostic Code 9411, a 50 percent rating for PTSD is assigned for occupational and social impairment with reduced reliability and productivity due to 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; and difficulty in establishing and maintaining effective work and social relationships. Id. 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. Id. 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. Id. The list of symptoms under the rating criteria are examples of symptoms that would warrant the rating, but are not exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). 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) (2017). 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. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Increased Rating for PTSD The Veteran argues for an initial disability rating for PTSD in excess of 50 percent from March 4, 2009. After a thorough review of the entire record, the Board finds that the Veteran's symptoms have not caused the level of impairment required for a disability rating of 70 percent or higher at any time during the appeal period. The Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. The Board recognizes that the Veteran had some PTSD symptoms resembling those contemplated by the higher rating criteria. However, at no time were such symptoms shown to result in decreased occupational and social impairment as contemplated by the 70 percent rating or higher. Vazquez-Claudio, 713 F.3d 112, 117-18. Assignment of staged ratings has been considered and is not for application. See Hart, supra. The Veteran's service treatment records reflect depression, and little interest in doing things. In 2007, the Veteran indicated that he has thoughts of self-harm. In 2009, the Veteran reported he was jumpy, had difficulty sleeping, and anger issues. Moreover, in March 2009, the Veteran's VA treatment records reflect depressed mood most of the time with off and on anxiety. See Medical Treatment Record received January 2010. The Veteran admitted to abusing alcohol and purchasing Vicodin to calm his anxiety. He stated he cannot be in large crowds because of his anxiety, and he worries that he will become defensive if he cannot get away from the crowds. The Veteran underwent a VA psychiatric examination in May 2009. He reported that while in Iraq, a car bomb exploded at the gate and he went to check and secure the area. He witnessed dead burned bodies being carried off. He reported a continuous smell of burning flesh and car parts. The VA examiner found suicidal ideation was present, but the Veteran stated he would not carry it out. The Veteran also reported a history of delusions, including hearing his mother's voice. The VA examiner found the Veteran had obsessive rituals which interfere with his routine activities, such as spraying Lysol before and after someone comes into his home. The Veteran reported irritability, angry outbursts, and difficulty concentrating, but also reported a good relationship with his girlfriend and coworkers. The VA examiner stated that the Veteran's symptoms cause occupational and social impairment with occasional decrease in work efficiency. In September 2014, the Veteran reported that he is recently married and his relationship with his spouse was off and on for the past six years, their marriage is working out well. See Capri received February 2016. The Veteran previously stated he had thoughts of suicide with a plan to hang himself. He stated he never followed through and asserted they were only thoughts and he would never actually hurt himself. The VA clinician noted the Veteran denied hallucinations and had decreased interest and feelings of detachment, depressed mood, recurrent and intrusive recollections, problems with anger, hypervigilance, exaggerated startle reaction, and impairment in function. The Veteran testified during a January 2016 Board hearing regarding his PTSD. He testified that he is unable to go out in public places or to social events. He further testified that he has maintained a full-time job as a laborer for many years and does not get along with his supervisor and tends to work alone as to not involve others. The Veteran's August 2016 treatment records reflect that he has held a job with the city for seven years. The Veteran was afforded a VA examination in August 2016. The examiner noted that while the Veteran is married and has maintained long term employment, he has occupational and social impairment due to mild or transient symptoms which decrease work efficiency. The Veteran reported that he keeps his distance from his children as to not hurt them. He reported having a few friends but most of the time stays home alone. The Veteran reported that he was hospitalized five years prior because the Army Reserve SRP thought he was suicidal based on the dreams he reported. However, he did not report suicidal thoughts during this examination. The Veteran reported nightmares of dying, shooting someone, or being in a car bomb. Finally, he reported that he must spray fragrance daily because he smells something that smells like a car burning. The Veteran submitted a personal statement in September 2016. He stated that he has nightmares of hurting his wife. He stated that he is depressed all the time and does not want to bother with anything to do with his life. He stated that he is only alive to take care of his family. He reiterated his need to spray fragrances to cover the smell of burning cars and bodies and his need to isolate himself at home. The Veteran's October 2017 Reserve Service Treatment Records reflect that he lost his job and was having marriage problems. He reported symptoms such as, but not limited to, nightmares, disturbing thoughts/dreams, loss of interest, feeling distant from people, anger/irritability, and difficulty sleeping. He denied suicidal thoughts, but did reports he had thoughts about hurting others if they "say something," but he denied ever being violent with anyone and denied any plans. In October 2018, the Veteran indicated he had marriage and/or financial problems and sought counseling for his mental health. The Veteran provided negative responses to questions about nightmares, avoidance, and detachment. He did indicate he experienced several days of little or no interest in doing things and feeling down, depressed, or hopeless. He expressly denied suicidal/homicidal thoughts within prior month. In July 2019, the Veteran's PTSD screening was negative; however, in October 2019, the Veteran stated his PTSD symptoms had increased due to a recent home invasion. He reported being "super alert" and easily startled. See Capri received June 2020 and Reserve STR received September 2020. In January 2020, the Veteran indicated he did not receive any mental health care in the past year, nor did he report any mental health problems (other than little interest or pleasure in doing things for several days over the prior two-week period) on his pre-deployment examination. He expressly denied depression or any recent (within prior month) suicidal/homicidal thoughts. The Veteran was determined to be deployable. The Veteran completed a one-year tour of active duty and was promoted in the Army, demonstrating leadership potential in April 2020. The Veteran was afforded a VA examination in June 2021. The VA examiner reported that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner reported the Veteran's mood was neutral and his affect was flat. He was alert and well-groomed with logical thought processes. He did not report hallucinations; however, he reported nightmares about friends and family being killed. He reported difficulty connecting with his children and showing emotions. He stated that he avoids large groups because he becomes irritated, resulting in arguments and fights. He reported triggers that remind him of the smell of burning cars and flesh and he must spray an air freshener. The Veteran denied hallucinations. Based on the totality of the evidence, the Board finds that an initial 50 percent evaluation, but no higher, and throughout the appeal period is appropriate. The Board recognizes that during this time, the Veteran had some PTSD symptoms resembling those contemplated by the higher rating criteria. However, as further discussed below, at no time were such symptoms shown to result in decreased occupational and social impairment as contemplated by the 70 percent rating or higher. Vazquez-Claudio, 713 F.3d 112, 117-18. While the Veteran has intermittent thoughts of suicide, he continually affirms he has no intention to follow through on those thoughts. The Board recognizes that the 70 percent rating criteria do not distinguish between active and passive suicidal ideation and that, in some cases, the mere presence of suicidal ideation (ranging from passive thoughts of one's own death to active thoughts of engaging in suicide-related behavior), may cause occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The key word, taken verbatim from the Bankhead decision, is "may" which is merely suggestive. In other words, the Court declined to hold that the presence of suicidal ideations automatically entitles a veteran to a 70 percent evaluation under the rating criteria in every situation. Rather, "VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment." Bankhead, 29 Vet. App. at 22 (internal citations omitted). In this case, the notations of suicidal ideation (passive or otherwise), even when considered with other symptoms, did not cause the level of occupational and social impairment associated with a 70 percent disability rating. In particular, the record does not reflect symptomatology of deficiencies in most areas, particularly, work, judgment, thinking or mood, such that his symptoms equate to the severity, frequency and duration of near continuous panic or depression, impaired impulse control, obsessional rituals or spatial disorientation. The Veteran's intermittent reports of suicidal ideation do not formulaically warrant a 70 percent rating considering his entire disability picture. Bankhead, supra; see also Vazquez-Claudio, supra (intermediate disability levels are also distinguished from one another by the frequency, severity, and duration of their associated symptoms; a 70 percent rating requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas). The Board notes the Veteran's isolated report of a history of hallucinations, including audio hallucinations during his May 2009 VA examination. However, the Veteran maintained full time employment at this time, with no indication that the hallucinations interfered with his occupational ability. The Veteran did not report any further hallucinations after this VA examination, and later denied hallucinations in 2011, 2016, and 2021 treatment reports. Additionally, although the Veteran regularly reports the need to spray air freshener to cover the smell of burning cars, there is no evidence that this impedes his occupational and social abilities. Moreover, during his March 2021 VA examination, he reported that "sometimes" he has to spray the air freshener. This goes against the finding that spraying the air freshener is an "obsessive ritual." Furthermore, the May 2009 VA examination, which indicated the Veteran experienced obsessive rituals, reflected that the obsessive ritual was that the Veteran was afraid of germs and sprayed Lysol regularly; however, the record is silent for any other indications of this occurring. As such, this isolated report does not outweigh the continuous findings that the Veteran's occupational and social impairments more closely approximate a 50 percent evaluation. As for social impairment, the Veteran's PTSD symptoms have not manifested in or approximated the level of severity contemplated by the 70 percent rating or higher. The Veteran remains able to maintain judgment over his actions when irritated. The Veteran indicated that he has few friends and trouble connecting with his children. While he may have trouble connecting emotionally, that is contemplated by the 50 percent rating, which contemplates difficulty in establishing and maintaining effective work and social relationships. He did get married during the appeal period and has maintained that relationship, and, again, any difficulties with doing so are encompassed by the current rating. While he was experiencing marital issues in approximately 2017, records thereafter show a denial of any continued problems. The fact he has been able to excel in his work with the Army and receive a promotion specifically mentioning leadership potential is also indicative of a level of social functioning inconsistent with a higher rating. Finally, as for occupational impairment, the Veteran maintained long-term employment during the early part of the appeal period, and although it appears there may have been some changes in his employment status at one point in approximately 2017, there is no suggestion in the record he has been unemployed for any significant period of time or had any other employment challenges because of his mental health condition. During the 2016 VA examination, he did not report performance problems and reported being social with his co-workers. He has maintained his membership in the Reserves, which is an important representation of his continued ability to function in an occupational, structured environment. And, he also recently completed a one year active duty tour with no complaints of mental health symptoms (other than little interest or pleasure in doing things for several days over the prior two-week period), and his 2020 Army promotion is clear evidence of a significant level of occupational functioning since it demonstrates his ability to excel within the job environment and was based on his leadership potential. All these facts, in their totality, simply do not reflect a decrease in occupational and social impairment as contemplated by a 70 percent rating or higher. The weight of the most probative, credible, and persuasive medical evidence does not warrant an initial disability rating greater than 50 percent for service-connected PTSD at any point during the appeal period. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Townsend, 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.