Citation Nr: 21068607 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 07-09 924A DATE: November 10, 2021 ORDER For the period prior to August 10, 2009, entitlement to a rating of 50 percent, and no higher, for post-traumatic stress disorder (PTSD) is granted. For the period starting August 10, 2009, entitlement to a rating in excess of 70 percent is denied. REMANDED Entitlement to an effective date earlier than November 25, 2005 for the award of service connection for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to August 10, 2009, the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity. 2. Since August 10, 2009, the Veteran's PTSD has not caused total occupational and social impairment. CONCLUSIONS OF LAW 1. For the period prior to August 10, 2009, the criteria for entitlement to a rating of 50 percent, and no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9411 (2020). 2. For the period starting August 10, 2009, the criteria for entitlement to a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1990 to April 1994. He received the Southwest Asia Service Medal with three stars; Sea Service Deployment Ribbon with two stars; Joint Meritorious Unit Award with one star and one oak leaf cluster; National Defense Service Medal; Good Conduct Medal; Armed Forces Expeditionary Medal; Kuwait Liberation Medal; Humanitarian Service Medal; Combat Action Ribbon with one gold star; Navy Unit Commendation; Rifle Expert Badge; and Meritorious Mast. The Veteran testified at March 2009 Travel Board hearing before a Veterans Law Judge (VLJ). In September 2020, the Veteran was notified that the VLJ that presided over the March 2009 hearing is no longer with the Board. The Veteran elected to have another Board hearing. In February 2021, the Veteran testified at a videoconference hearing before the undersigned VLJ. A transcript of the hearing is associated with the claims file. The current appeal has a long procedural history and has been before the Board numerous times. Notably, the Board decided the claims in April 2013 and the Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In September 2014, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the Veteran and VA's Office of the General Counsel (OGC). The Court's order remanded the matter for actions consistent with the terms of the JMPR, to include the retrieval of outstanding private treatment records. The Board denied the Veteran's appeal in May 2017 and the Veteran again appealed the decision to the Court. In October 2018, the Court granted a Joint Motion for Remand (JMR) filed by the Veteran and OGC. The Court's order remanded the appeal for actions consistent with the terms of the JMR, to include the retrieval of outstanding private treatment records from the Springfield Vet Center. The appeal was most recently remanded in April 2019 and May 2021 for the same outstanding treatment records. Since the May 2021 remand, the outstanding records have been associated with the claims file. Increased Rating for PTSD The Veteran's PTSD is rated as 30 percent disabling prior to August 10, 2009, and 70 percent disabling thereafter, under the provisions of 38 C.F.R. § 4.114, Diagnostic Code (DC) 9411. Psychiatric disabilities are evaluated under the General Rating Formula for 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 satisfactorily, 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, mild memory loss (such as forgetting names, directions, recent events). 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Board notes that the General Rating Formula for Mental Disorders specifically contemplates the use of medication to ameliorate symptoms and a higher rating may not be assigned based solely on the fact that a veteran uses medication to treat his or her symptoms. See McCarroll v. McDonald, 28 Vet. App. 267, 273 (2016) (the Board did not err in failing to discount the ameliorative effects of blood pressure medication as the plain language of DC 7101 contemplates the effects of medications). The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that "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." The Federal Circuit further noted that "§ 4.130 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." Id. Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment described in the general rating formula to determine whether an increased evaluation is warranted. The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). In this case, staged ratings for the disabilities on appeal have already been assigned; therefore, the Board will discuss the propriety of the ratings assigned at each stage. Prior to August 10, 2009, the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity. The Veteran underwent a VA examination in March 2006. See March 2006 VA Examination, pp. 1-7. At this time, the Veteran's reported and observed symptoms included reexperiencing combat experiences; intrusive thoughts and nightmares; physiologic reactivity to triggers; tearfulness with witnessing reports from Iraq; avoidance; poor frustration tolerance and excess irritability; anger and anger dyscontrol; hypervigilance, hyperarousal and exaggerated startle response; impaired concentration and forgetfulness; depressed mood; loss of interest in recreational activities; and, poor appetite and loss of energy. The Veteran worked as a police officer, was recently divorced and involved in a new romantic relationship at the time, and had custody of his daughter. He indicated that he did not engage in life outside of work. The examiner observed a normal appearance, normal thought process, and normal thought content. The Veteran was described as being attentive and cooperative throughout the interview, and he exhibited fair attention and concentration with memory intact in all spheres. Treatment records from this time show that the Veteran's most severe and frequent symptoms included depressed mood, anxiety, irritability, hypervigilance, suspiciousness, chronic sleep impairment, anger, difficulty establishing and maintaining effective work and social relationships, intrusive thoughts, and difficulty adapting to stressful situations. See February 2006 Third Party Correspondence, p. 1; February 2008 Correspondence, p. 1; July 2009 VA Treatment Records, pp. 1, 23; June 2021 Private Treatment Records, pp. 24-34. The Veteran also required medications to manage his mood and anxiety. See June 2021 Private Treatment Records, p. 26; March 2009 Hearing Testimony, p. 13. The Veteran was described as exhibiting a normal appearance, normal speech, normal thought process, normal thought content, fair attention, fair concentration, intact memory, and an absence of suicidal ideation. See July 2009 VA Treatment Records, pp. 1, 23; October 2015 VA Treatment Records, p. 163. Both in correspondence and at the March 2009 hearing, the Veteran described PTSD symptoms including sleep impairment, nightmares, difficulty adapting to stressful circumstances, irritability, isolation, anxiety, and forgetfulness. See March 2006 Correspondence, pp. 4-5; March 2009 Hearing Testimony, pp. 13-16. At the March 2021 hearing, the Veteran recounted relationship issues from this period, increased absenteeism from work, irritability with violence towards inanimate objects, and memory impairment. See February 2021 Hearing Transcript, pp. 14-16. After careful consideration, the Board finds that the Veteran's PTSD more closely approximated the picture contemplated by the 50 percent rating for the period prior to August 10, 2009. To warrant a higher rating, the evidence must show 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 worklike setting); inability to establish and maintain effective relationships; or symptoms of similar severity, OR the evidence could demonstrate total occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 116-17. The Board recognizes that the Veteran required the use of medications to manage some of his PTSD symptoms. However, the rating criteria explicitly contemplate the ameliorative effects of medications; thus, the Board is unable to discount the effects of those medications. See McCarroll, 28 Vet. App. at 273. Although the evidence shows that the Veteran had difficulty adapting to stressful circumstances and irritability with violence towards inanimate objects, the evidence does not show that these symptoms were of a sufficient severity to cause occupational and social impairment with deficiencies in most areas. Instead, the evidence shows that the Veteran's most frequent and severe symptoms included depressed mood, anxiety, sleep impairment, nightmares, intrusive thoughts, anger, irritability, and difficulty establishing and maintaining effective work and social relationships. These symptoms produced occupational and social impairment with reduced reliability and productivity as demonstrated by the fact that the Veteran maintained his employment and his personal relationships, albeit with some difficulties. In addition, although the Veteran's PTSD clearly caused difficulty with social relationships, the evidence does not support that the Veteran was totally socially impaired (and was also totally occupationally impaired) such as to warrant an even-higher 100 percent rating. The severity of the Veteran's impairments during this time most closely approximates the disability picture contemplated by a 50 percent rating. Accordingly, a 50 percent rating, and no higher, is warranted for the period prior to August 10, 2009. Similarly, since August 10, 2009, the Veteran's PTSD has not resulted in total occupational and social impairment. The Veteran underwent a VA examination in August 2009. See August 2009 VA Examination, pp. 1-10. At this time, the Veteran's reported and observed symptoms included depressed mood, anxiety, isolation, lack of interest in social or leisure activities, hypervigilance, exaggerated startle response, suspiciousness, intrusive thoughts, nightmares, sleep impairment, impaired concentration, avoidance, obsessive/ritualistic behavior, and impaired recent and immediate memory. At the time, the Veteran still worked as a police officer although he reported increased absenteeism due to his PTSD symptoms. The Veteran was recently remarried and reported maintaining contact with his parents. He demonstrated fatigued and tense psychomotor activity and slow speech, but he was oriented to person, place and time and exhibited intact judgment and insight. The Veteran most recently underwent a VA examination in June 2020. See June 2020 VA Examination, pp. 1-8. The Veteran reported that his relationship with his current spouse was difficult and that he had opted to be assigned to desk duty at work because he could not handle the stress of being on the streets as a police officer. His reported and observed symptoms included depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships. The examiner described the Veteran as being alert and oriented to all four spheres and as being present with linear thought processes. Treatment records from this time show that the Veteran's most frequent and severe symptoms included feelings of isolation, varying anxiety, depressed mood, irritability, anger, occasional panic attacks, occasional sleep impairment, difficulty maintaining personal relationships, difficulty adapting to stressful circumstances, and impaired concentration. See September 2011 Third Party Correspondence, p. 6; August 2011 VA Treatment Records, p. 2; May 2013 CAPRI, pp. 12, 16, 19; April 2015 VA Treatment Records, pp. 44, 58, 68, 131; October 2015 VA Treatment Records, pp. 21, 35, 77, 82, 85, 113; October 2016 CAPRI, pp. 3, 45; October 2019 CAPRI, pp. 2, 23, 55, 66, 81, 109, 116, 133, 154; June 2020 CAPRI, pp. 3, 17; January 2020 Private Treatment Records, pp. 4, 6, 11-24; June 2021 Private Treatment Records, pp. 1-57; June 2021 Private Treatment Records, pp. 40, 50, 52, 54. The Veteran generally exhibited a normal appearance, speech, thinking, judgment, and insight. See August 2011 VA Treatment Records, p. 2; May 2013 CAPRI, pp. 12, 16, 19; April 2015 VA Treatment Records, pp. 44, 51, 58, 63, 65, 131; October 2015 VA Treatment Records, pp. 17, 19, 21, 26, 35, 76-77, 82, 85, 113; October 2016 CAPRI, pp. 3, 24, 45, 47; October 2019 CAPRI, pp. 55, 66, 81, 109, 116, 133; June 2020 CAPRI, pp. 3, 17, 73; January 2020 Private Treatment Records, pp. 6, 12, 15, 17-24; June 2021 Private Treatment Records, pp. 53-55. During this period, the Veteran completed his criminal justice degree and took on a second job as an instructor which he said he enjoyed. See October 2016 CAPRI, p. 24; October 2019 CAPRI, p. 2. He also expressed enjoyment from a family trip. See January 2020 Private Treatment Records, p. 17. At his February 2021 hearing, the Veteran testified to experiencing symptoms including flashbacks, hyperarousal, difficulty getting up in the morning, difficulty managing stress, a lack of interests or activities outside of work, relational issues with coworkers and his spouse, frequent irritability with violence towards inanimate objects, and exaggerated startle response. See February 2021 Hearing Transcript, pp. 4-17. The Board finds that the evidence preponderates against a finding of entitlement to a rating in excess of 70 percent for PTSD for the period starting August 10, 2009. Specifically, the evidence does not show 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; or symptoms of similar severity. See Vazquez-Claudio, 713 F.3d at 116-17. Instead, the preponderance of the evidence shows that the Veteran's PTSD produced symptoms such as anxiety, depressed mood, irritability, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. These symptoms resulted in occupational and social impairment but did not preclude the Veteran from maintaining his employment, completing his criminal justice degree, securing a second job, and maintaining his marital relationship. As such, the Board finds that the Veteran does not have total occupational and social impairment. Accordingly, an increased rating for PTSD is not warranted for the period starting August 10, 2009. REASONS FOR REMAND Earlier Effective Date for Award of Service Connection for PTSD In the October 2016 notice of disagreement, the Veteran disagreed with the effective date for the award of service connection for PTSD. See October 2006 Statement in Support of Claim, p. 1; September 2021 Appellate Brief, p. 4. The agency of original jurisdiction (AOJ) never issued a statement of the case (SOC) on this issue; accordingly, the Board takes jurisdiction over the claim for the sole purpose of remanding for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). TDIU In the September 2021 brief, the Veteran's representative raised the issue of entitlement to TDIU. See September 2021 Appellate Brief, p. 4; see also Rice v. Shinseki, 22 Vet. App. 447 (2009). There is no record of the Veteran's current employment status in the claims file, but he indicated that he maintained employment as recently as the February 2021 hearing. Accordingly, on remand, the Veteran should be invited to provide additional information about his employment history and current employment status. The matters are REMANDED for the following action: (Continued on the next page) 1. Provide the Veteran with an SOC concerning the claim for an earlier effective date for the award of service connection for PTSD. The SOC must instruct the Veteran to file a substantive appeal in response to the SOC to complete the steps necessary to perfect his appeal of this claim to the Board. 2. Invite the Veteran to submit updated information regarding his employment and employment history. The Veteran should also be provided with a copy of VA Form 21-8940. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W.V. Walker, 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.