Citation Nr: 21069511 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-22 269 DATE: November 18, 2021 ORDER Prior to November 26, 2019, entitlement to a disability rating in excess of 10 percent for a posttraumatic stress disorder (PTSD) disability is DENIED. On and after November 26, 2019, entitlement to a disability rating in excess of 30 percent for a service-connected PTSD disability is DENIED. FINDINGS OF FACT 1. Prior to November 26, 2019, the Veteran's service-connected PTSD was manifested by occupational and social impairment due to mild and transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication; occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks is not shown during this period. 2. On and after November 26, 2019, the Veteran's service-connected PTSD is manifested by 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); occupational and social impairment with reduced reliability and productivity is not shown during this period. CONCLUSIONS OF LAW 1. Prior to November 26, 2019, the criteria for entitlement to a disability rating in excess of 10 percent for a service-connected PTSD disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2020). 2. On and after November 26, 2019, the criteria for entitlement to a disability rating in excess of 30 percent for a service-connected PTSD disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from October 1965 to October 1968. 1. Prior to November 26, 2019, entitlement to a disability rating in excess of 10 percent for a service-connected PTSD disability is denied. On June 8, 2015, the Veteran submitted a VA Form 21-526EZ. Thereby, the Veteran initiated a claim for an increased rating for the service-connected PTSD disability. The Veteran's service-connected PTSD disability is rated under 38 C.F.R. § 4.130, DC 9411. The relevant criteria authorize a 10 percent rating for occupational and social impairment due to mild and transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130. A 30 percent rating is authorized 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). Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the 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. 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 solely on the basis of social impairment. 38 C.F.R. § 4.126. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for 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." "Although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of (occupational and social) impairment." Id. In August 2015, a PTSD disability benefits questionnaire (DBQ) was associated with the claims file. Therein, the examiner noted a current diagnosis for PTSD. The examiner noted that the diagnosed PTSD resulted in occupational and social impairment due to mild or transient symptoms, which decreased work efficiency and the ability to perform occupational tasks during periods of significant stress. The examiner reported that the Veteran had not undergone mental health treatment. The examiner relayed that the Veteran's symptoms included anxiety and chronic sleep impairment. The examiner reported that the Veteran was logical, goal directed, exhibited normal affect, and his memory and attention were grossly intact. In September and November 2015, the Veteran submitted notices of disagreement (NODs) with the assigned 10 percent rating for the service-connected PTSD disability. Therein, the Veteran relayed that he endured bad dreams, and he avoided friendships with others. The Veteran also relayed that his PTSD symptoms were no longer transient; instead, they were constant. In April 2017, the Veteran submitted a VA Form 9. Therein, the Veteran relayed that he exhibited all of the symptoms necessary for a 30 percent rating for the service-connected PTSD disability. The Veteran posited that he regularly engaged in the group therapy that was available at his location, Combat Trauma Healing and Reboot. He indicated that the group(s) met twice monthly to learn coping skills and dialectic behavioral therapy. In February 2019, the Board addressed the Veteran's claim for an increased rating for the service-connected PTSD disability. The Board remanded the issue to afford the Veteran an updated VA examination, and to obtain group therapy treatment records from the facility where the Veteran was incarcerated in Oregon. In November 2019, the Veteran's treatment records at the Oregon State Penitentiary were associated with the claims file. After deliberate review, the Board observes that the treatment records provide very little information about the severity of the Veteran's service-connected PTSD disability. However, the Board observes that the records indicate that the Veteran did not demonstrate unusual anxiety or evidence of depression in July 2019. In July 2021, correspondence from a Reboot Alliance coordinator was associated with the claims file. The coordinator / provider relayed that the Veteran attended a trauma recovery support group. The provider relayed that he did not take notes, and that he was not a clinically trained psychiatrist. However, the provider reported a familiarity with the DSM-IV and -V criteria. The provider reported that the Veteran demonstrated the following symptoms during group meetings: social interaction impairment, flattened effect, impaired short-term memory and abstract thinking, and disturbance of motivation and mood. The provider did not comment on the frequency or duration of the reported symptoms. The provider did report that the Veteran graduated from the Reboot Combat Recovery course in December 2018. The Board observes that the Reboot Alliance coordinator reported the following PTSD symptoms: social interaction impairment, flattened effect, impaired short-term memory and abstract thinking, and disturbance of motivation and mood. The Reboot Alliance coordinator did not report that the Veteran's symptoms included anxiety, suspiciousness, panic attacks, or chronic sleep impairment. The Board also observes that the August 2015 VA examiner reported the following observable symptoms: logical, goal directed, exhibited normal affect, and grossly intact memory and attention. The Board notes that, in the submitted 2015 NODs, the Veteran posited that his PTSD symptoms were constantand not transient. However, after deliberate review of the claims file, the Board finds that the evidence does not support constant PTSD symptoms. The August 2015 examiner reported transient symptoms. Moreover, the Oregon State Penitentiary records do not reflect that the Veteran endured unusual anxiety or depression in July 2019. At this time, the Board finds that, during the claim period, the evidence does not support that the Veteran endured PTSD symptoms that resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. After deliberate review of the claims file, the Board concludes that the evidence of record supports the currently assigned 10 percent rating for service-connected PTSD during the claim period, June 8, 2015 to November 26, 2019. The evidence reflects that the Veteran's service-connected PTSD disability resulted in occupational and social impairment due to mild and transient symptoms that resulted in decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress prior to November 26, 2019. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran's claim for a rating in excess of 10 percent, prior to November 26, 2019, for the service-connected PTSD disability. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim for a rating in excess of 10 percent prior to November 26, 2019, for the service-connected PTSD disability must be denied, because the preponderance of the evidence weighs against his claim. 2. On and after November 26, 2019, entitlement to a disability rating in excess of 30 percent for a service-connected PTSD disability is denied. On November 26, 2019, a PTSD DBQ was associated with the claims file. Therein, the examiner noted a current diagnosis for PTSD. At that time, the Veteran reported periodic depression, but denied suicidal and/or homicidal intentions. The examiner noted that the diagnosed PTSD resulted in occupational and social impairment due to mild or transient symptoms, which decreased work efficiency and the ability to perform occupational tasks during periods of significant stress. The examiner noted that the Veteran was not involved with mental health treatment at that time. The examiner noted that the Veteran's symptoms included the following: depressed mood, anxiety, and chronic sleep impairment. For behavioral observations of the Veteran, the following was noted: casual dress, well-groomed, correct orientation, no signs of hallucinations or delusions, normal affect, happy mood, and intact attention and memory. In an August 2020, the agency of original jurisdiction (AOJ) issued a rating decision. Therein, the AOJ increased the Veteran's disability rating for the service-connected PTSD disability to 30 percent, effective November 26, 2019. Again, the Veteran's service-connected PTSD disability is rated under 38 C.F.R. § 4.130, DC 9411. The relevant criteria authorize a 30 percent rating 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). 38 C.F.R. § 4.130. A 50 percent rating is warranted 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 effective work and social relationships. Id. Again, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the 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. 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 solely on the basis of social impairment. 38 C.F.R. § 4.126. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for 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." "Although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of (occupational and social) impairment." Id. In November 2020, the Board addressed the Veteran's claim for an increased rating for the service-connected PTSD disability. The Board remanded the issue because no attempt had been made to retrieve the records from an identified treatment provider, Reboot Recovery. In November 2020, a Certificate of Graduation was associated with the claims file. Therein, it was reported that the Veteran completed a course entitled "Reboot Combat Recovery." In April 2021 , the Veteran's treatment records were associated with the claims file. After deliberate review, the Board notes that, in July 2019, a provider reported no unusual anxiety or evidence of depression. In August 2020, a provider reported that the Veteran's psychiatric symptoms did not include evidence of depression. In November 2020, a provider reported no unusual anxiety or evidence of depression. In February 2021, a provider noted that the Veteran did not demonstrate depressive symptoms. In May 2021, the Board addressed the Veteran's claim for an increased rating for the service-connected PTSD disability. The Board remanded the issue to afford the Veteran the opportunity to request / secure records from "Reboot Recovery" so that they could be associated with the claims file and considered. In June 2021, a psychological and mental health evaluation summary, generated in the Oregon State Penitentiary Health Services department, was associated with the claims file. After deliberate review, the Board observes that the Veteran reported that did not engage in mental health treatment after separation from the military. The Veteran reported current flashbacks, nightmares, increased startle response, and feelings of alienation. The Veteran reported current isolation efforts to reduce exposure to stimuli. The Veteran reported current memory problems, but denied suicidal and homicidal ideation. Again, in July 2021, correspondence from a Reboot Alliance coordinator was associated with the claims file. The provider relayed that the Veteran attended a trauma recovery support group. The provider relayed that he did not take notes, and he was not a clinically trained psychiatrist. However, the provider reported familiarity with the DSM-IV and -V criteria. The provider reported that the Veteran demonstrated the following applicable symptoms: social interaction impairment, flattened effect, impaired short-term memory and abstract thinking, and disturbance of motivation and mood. The provider reported that the Veteran graduated from the Reboot Combat Recovery course in December 2018. In August 2021, the Veteran submitted a VA Form 21-4138. Therein, the Veteran relayed that, "Reboot Recovery is not a medical facility and as far as I know does not store medical records at the facilitators location. . . . The medical records aspect of my claim would most likely only come from Oregon State Penitentiary." After deliberate review of the Veteran's claims file, the Board finds that the reported symptoms most closely align with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks during the claim period, on and after November 26, 2019. The Board also finds that the reported symptoms do not equate to / align with the Veteran's service-connected PTSD disability symptoms resulting in occupational and social impairment with reduced reliability and productivity. The Board notes that the November 2019 VA examiner reported that the Veteran's PTSD disability symptoms resulted in depressed mood, anxiety, and chronic sleep impairment. However, in July 2019, August and November 2020, and February 2021, the Veteran's various providers did not report any symptoms of depression. Moreover, the Board also notes that the Veteran reported flashbacks, nightmares, increased startle response, feelings of alienation, efforts to reduce exposure to stimuli, and memory problems during the June 2021 psychological and mental health evaluation summary for the Oregon State Penitentiary Health Services department. However, at this time, the Board concludes that the Veteran's noted and/or reported PTSD symptoms do not equate to occupational and social impairment with reduced reliability and productivity during the claim period, on and after November 26, 2019. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran's claim for a rating in excess of 30 percent for the service-connected PTSD disability during the claim period, on and after November 26, 2019. Since the preponderance of the evidence is against this increase rating claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim for a rating in excess of 30 percent for the service-connected PTSD disability, on and after November 26, 2019, must be denied, because the preponderance of the evidence weighs against his claim. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.