Citation Nr: 21067331 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 10-18 998A DATE: November 3, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran's PTSD symptoms do not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to May 1973. The Veteran passed away in April 2019. The Appellant is the surviving spouse and her request for substitution was granted in May 2020. This matter originally came before the Board of Veterans' Appeals (Board) from multiple rating decisions issued by Department of Veterans Affairs (VA) Regional Offices (ROs). The Veteran testified at a September 2016 Board video-conference hearing before the undersigned Veterans Law Judge (VLJ).; a transcript of the hearing is of record. Duty to Notify and Assist VA must notify the claimant of any information, including any medical or lay evidence, not previously provided to VA, that is necessary to substantiate the claim. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has satisfied its duties to inform the Veteran and the appellant in this case. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 21.1032 (a). The duty to notify was satisfied by Rating Decision Narratives dated October 2010, September 2011, July 2016, and Notification Letter dated October 2010. See also September 2011 DRO Hearing, September 2016 Board Hearing, July 2016 Statement of the Case, August 2017 Supplemental Statement of the Case (SSOC), June 2020 SSOC, March 2021 SSOC and July 2021 SSOC. VA's duty to assist functions to aid a claimant in obtaining evidence necessary to substantiate a claim, but VA is not required to provide assistance to a claimant when there is no reasonable possibility that assistance would aid in substantiating the claim. See 38 U.S.C. § 5103A (2012). As for VA's assistance to the Veteran, the entire record was available to the September 2010, September 2015, July 2017, October 2018, March 2021 and June 2021 and the testing was sufficient to adequately address all potential rating criteria. See 38 U.S.C. § 7104 (d)(1); 38 C.F.R. §§ 3.385, 4.87. Any defects in the VA examinations were cured by each successive examination. The Board finds that VA has done everything reasonably possible under 38 C.F.R. § 21.1032 (a) to assist the Veteran. The appellant has not identified any available, outstanding records that are relevant to the claim decided herein, nor is there an indication that any outstanding evidence, relevant to the claim, needs to be obtained. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2017). Further development and further assistance by VA are not warranted. The RO's efforts have substantially complied with the instructions contained in the April 2017, September 2018, December 2020 and May 2021 Board remands. See Stegall v. West, 11 Vet. App. 268 (1998). An additional remand for further development of this claim would serve no useful purpose. Accordingly, the Board finds that no prejudice to the appellant will result from the adjudication of his claim in this Board decision. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned for 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 warranted where 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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent rating 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The Board notes that considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Further, rating evaluations under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). Although a Veteran's symptomatology is the primary consideration in assessing their disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the Veteran's level of impairment in "most areas" for that rating. Id.; 38 C.F.R. § 4.130. 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) The Veteran asserts that he is entitled to a higher disability rating for PTSD. The Board concludes that the Veteran's symptoms do not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran's symptoms more closely approximate the symptoms associated with a 50 percent rating, and result in a level of impairment that most closely approximates the level of impairment associated with a 50 percent rating. VA treatment records, the September 2010, September 2015, July 2017, October 2018, March 2021 and June 2021 VA examinations, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 50 percent rating for the entire period on appeal. The Veteran experiences occupational and social impairment with reduced reliability and productivity. For instance, results from a September 2010 VA examination showed the Veteran reported a good relationship with his spouse, limited social relationships with a few good friends, a decrease in interest in developing friendships and in leisure activities and a loss of enjoyment. He did not report homicidal or suicidal ideations, anxiety or depression. He reported no problems with activities of daily living, memory loss, obsessive or ritualistic behaviors, panic attacks, impulse control or thinking. His reported depression and anxiety were 5/10 and 7/10, respectively. He did not endorse hallucinations or delusions. He endorsed experiencing memories of his trauma once or twice a month with mild distress, and dreams once or twice a month with severe distress. The Veteran reported avoidance of thoughts and feelings, and extreme effort in avoiding activities, people and places that remind him of the event. He did not report issues with concentrating, watchfulness or alertness but did endorse a strong startle response. He noted that his symptoms did not significantly interfere with social or occupational functioning. These symptoms are squarely within the criteria for a 50 percent rating and do not approximate the higher criteria for a 70 or 100 percent ratings by showing a deficiencies in most areas or total occupational and social impairment. A November 2010 private examination showed the Veteran was dressed roughly with marginal grooming and a musty body odor. The examination revealed some fluctuation between abstract and concrete levels. The Veteran denied any wide mood swings or emotional liability but endorsed depression for a few hours about once a week. He denied homicidal or suicidal ideation. He endorsed mania or hypomania, keeping himself busy cleaning the house, working outside and helping his brother-in-law to feel good. No obsessions, compulsions, paranoid ideas, or hallucinations. No instances of thought reading, or frightening thoughts or impulses. His interpersonal relationships are somewhat reserved, but he can be close and loyal to others. Information, judgment, and insight are good. Memory is broadly intact, but a little inexact with specifics. Thought stream normal. Sleep problems and nightmares. Moderate impairment in functioning and depression that comes and goes. These symptoms are meet the criteria for a 50 percent rating and do not approximate the higher criteria for a 70 or 100 percent ratings by showing deficiencies in most areas or total occupational and social impairment. The September 2015 VA examination showed the Veteran reported that the intensity and frequency of his trauma remained about the same as in 2010. Suddenly feeling or acting as if the stressful experience was actually happening again; strong physical reactions when something reminds him of the stressful experience; avoids memories/thoughts or feelings related to the stressful experience; avoids external reminders of the stressful experience; loss of interest in activities he used to enjoy; feels distant or cut off from others, concentration problems; sleep problems; frequent repeated, disturbing, and unwanted memories of the stressful experience; feels very upset when something reminds him of it; strong negative feelings like fear, horror, anger, guilt, or shame; irritable behavior, angry outbursts, or acting aggressively; taking too many risks or doing things that could cause him harm; and being super alert or watchful or on guard. He endorsed a little trouble remembering important parts of the stressful experience; strong negative beliefs about self, others, or the world; blames self or others for the stressful experience; and trouble experiencing positive feelings. The examiner found the Veteran to look older than his stated age, alert and oriented to all spheres, noted depression but no suicidal or homicidal ideation, no appearance of hallucinations or psychosis. He found the Veteran to have occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks. Again, the Board finds that these symptoms more closely approximate a 50 percent rating, and do not show deficiencies in most areas or total occupational and social impairment that would warrant a higher rating. The July 2017 VA examiner determined the Veteran exhibited occupational and social impairment with reduced reliability and productivity. The Veteran endorsed recurrent, involuntary and intrusive distressing memories and sleep disturbance. He also noted anxiety, chronic sleep impairment, mild memory loss, difficulty in understanding complex commands, impaired abstract thinking, difficulty with relationships and difficulty adapting to stressful circumstances. He demonstrated an alert, anxious affect with constricted mobility in range and intensity, memory impairment, slow speech and slowed thought processes. Did not endorse suicidal or homicidal ideation. He reported cognitive issues in the past 2 years, explaining getting lost in his hometown and describes things rather than using their name. The October 2018 VA examination found the Veteran to have occupational and social impairment with reduced reliability and productivity. The examiner diagnosed the Veteran with PTSD and an unspecified neurocognitive disorder. He noted the Veteran's speech as somewhat slow and hesitant but logical and related adequately. He was mildly anxious with slow responses, mild cognitive difficulties and adequate memory. The Veteran endorsed periods of depression and denied suicidal or homicidal ideation, hallucinations and delusional thinking. He exhibited a depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss and disturbances of motivation and mood. Again, this is not evidence of deficiency in most areas or total occupational and social impairment. In the December 2020 Board decision, the Board found the July 2017 and October 2018 VA examinations to be inadequate as they did not consider all the evidence of record. The subsequent March 2021 VA examination found the Veteran's PTSD to be less likely than not manifest of occupational and social impairment with deficiencies in most areas. By way of rationale, the examiner restated the conclusions of the previous VA examiners and added that he opined he did not believe the Veteran met the criteria for PTSD but generalized anxiety which would not impair work-related functions as the Veteran worked for 27 years with the US Treasury. The May 2021 Board remand determined the March 2021 VA examination to be inadequate as it did not consider the Veteran's statements as required in the December 2020 Board remand but essentially restated the conclusions of the previous inadequate examinations. The June 2021 VA examination found that the Veteran did not experience significant occupational or social impairment in most areas. The examiner considered the Veteran's statements, to include his September 2016 testimony before the Board and lay statements. He opined that though the Veteran endorsed numerous PTSD symptoms, the Veteran's reports in his numerous VA examinations were more consistent with one another than those symptoms "given to him by his attorney". He found that the Veteran received no mental health treatment and was not treated with psychotropic medications and noted "there is variation in the aforementioned C&P exams, but one area of agreement is mild symptoms". With respect to total occupational and social impairment, the examiner found it was less likely than not that the Veteran had experienced such symptoms at any time during the appeal. He found that though the Veteran was at one point diagnosed with a mild neurocognitive disorder, there was no evidence of neuropsychological testing to substantiate the diagnosis. He noted that the Veteran denied having "concerns (particularly to the severity listed) in any of the previous exams". He also noted the Veteran's positive relationships with his wife of over 40 years, his children and other relatives, and of working for 27 years and retiring without issue. The examinations did not show the Veteran experienced symptoms contemplated by a 70 percent rating. As noted above, the Veteran's symptoms were either contemplated by or more consistent with a 50 percent rating. Further, while the various VA examiners found that the Veteran would experience occasional occupational difficulties, the Veteran did not report at the examinations that he was currently unemployed because of his PTSD. Instead, he was previously employed by the US Department of Treasury for 27 years until he retired due to complications of a separately service-connected condition. The Veteran had also been married to the appellant for over 40 years. Accordingly, the Board finds that the Veteran's overall disability picture more nearly approximates the criteria for a 50 percent rating since June 30, 2009. The Board finds no credible basis for the assignment of a staged rating. The credible lay and medical evidence demonstrates that the effects of the Veteran's service-connected PTSD symptoms are described to be of the type, frequency and severity that are more nearly consistent with occupational and social impairment with reduced reliability and productivity based upon the symptoms described above. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.