Citation Nr: 21069822 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-62 441A DATE: November 19, 2021 ORDER Entitlement to an initial evaluation of 70 percent, but no higher, for service-connected PTSD is granted, subject to regulations governing payment of monetary rewards. FINDING OF FACT The Veteran's service-connected PTSD resulted in occupational and social impairment with deficiencies in most areas due to symptoms such depressed mood, anxiety, hypervigilance, suicidal ideations, anger outburst, and obsessional rituals that interfere with routine activities. CONCLUSION OF LAW The criteria for an initial 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1975 to February 1977. He died in December 2017. The Appellant is his surviving spouse and has been recognized as an approved substitute in this appeal. By way of history, the Board initially denied the Veteran's claim for an initial increased rating in excess of 50 percent for PTSD in a May 2019 decision. The Appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court) and a Joint Motion for Partial Remand (JMPR) was issued in December 2019. The parties agreed that the Board erred when it failed to provide adequate reasons and bases for denying the Veteran's claim. It was noted that the Board failed to adequately address and consider the Veteran's suicidal thoughts and did not explain its reasons in rejecting the July 2012 VA examination which mentioned the Veteran's difficulty in adapting to stressful circumstances, including work or a worklike setting. The Court subsequently issued an Order in January 2020 vacating the May 2019 Board denial and remanded the matter for actions consistent with the JMPR. When the matter returned to the Board in August 2020, it again denied the Veteran's claim for increased rating. The Appellant appealed that decision to the Court and a JMPR was filed by both parties in June 2021. The parties argued that the Board relied on the July 2012 VA examination in denying the Veteran's claim by finding that the Veteran's psychiatric symptoms are attributed to a nonservice-connected personality disorder. However, the Board failed to address other treatment records that called into question the July 2012 examiner's conclusions. For example, an April 2017 private medical record reflects that the July 2012 diagnosis of personality disorder was based on the MMPI-2 criteria, which should not be used to render a clinical psychiatric diagnosis. Furthermore, the August 2020 Board decision failed to consider other positive evidence discussed by the April 2017 private opinion. Instead, the Board heavily relied on parts of the October 2009 and July 2012 examination reports, which indicated that the Veteran's statements were "consistent with exaggeration consistent with compensation behavior." In June 2021, the Court issued an Order, vacating the August 2020 Board decision and remanded the matter for actions consistent with the JMPR. The issue is now back before the Board for readjudication. Next, the Board notes that the Appellant more recently filed a claim for non-service-connected burial benefits in June 2018. However, the record reflects that the Appellant previously filed her Application for non-service-connected burial benefits in January 2018, which was granted. She received $300.00 for the Veteran's burial costs and $578.00 for transportation costs. See February 2018 Notification Letter. In a July 2018 Development Letter, the AOJ notified the Appellant that the non-service-connected burial benefits have already been paid. But despite the previous grant, they were developing a claim for service-connected burial benefits. At the time of his death, the Veteran was service connected for PTSD, which is not shown to be the cause of his death in 2017. See Death Certificate. The AOJ therefore requested additional medical records from the Cleveland Clinic, which were ultimately obtained. See June 2020 Medical Treatment Record-Non-Government Facility. The claims file does not show that the AOJ has adjudicated a claim for service-connected burial benefits. Therefore, the Board does not have jurisdiction over the claim. The issue is referred to the AOJ for appropriate action. 38 C.F.R. § 20.904(b). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Under Diagnostic Code 9411, a 50 percent disability rating is assigned where a psychiatric disability causes 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 disability rating is assigned where a psychiatric disability causes 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; 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); and inability to establish and maintain effective relationships. The maximum schedular disability rating of 100 percent is assigned where a psychiatric disability causes 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Furthermore, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "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." 38 C.F.R. § 4.126 (a). The Board will now determine whether the Veteran is entitled to an initial rating in excess of 50 percent for his service-connected psychiatric disorder. The Appellant, through her representative, contends the Veteran's initial disability rating for PTSD should have been 70 percent for the entire period on appeal. In a June 2007 VA psychiatric consultation note, the Veteran was seen for medication management and supportive psychotherapy. He was appropriately groomed. He was attentive and maintained good eye contact. He was cooperative and his speech was appropriate in volume, rate, and tone. His mood was worried with full range affect. He denied suicidal and homicidal ideations. He denied delusions and hallucinations. His insight and judgment were considered good to fair. Based on a December 2008 VA examination, the Veteran reported feelings of worry. A mental status examination reported that the Veteran was presented casually, cleanly, and neatly dressed. He was alert, cooperative, and showed good eye contact. He was oriented to time, place, and person. His psychomotor activity was within normal limits. His speech was clear and of normal volume and articulation. He was cooperative but irritable during the examination. He described his general mood as "worried," although he did not display any outward signs of feeling anxious or distracted. He correctly recalled three of three words after a 10-minute delay. His thought process was goal oriented and had no derailment, lose or clanging associations, thought blocking or neologism. He had no signs of delusional or paranoia. He did not have any suicidal or homicidal ideations. In her final remarks, the examiner noted that she conducted the MMPI-2 test and found that there was indication of an exaggerated report of symptoms. Additionally, based on the signs, symptoms, and social functioning described by the Veteran, he did not meet the criteria for PTSD and that his symptoms are likely due to a personality disorder. Records from the Westside Vet Center in August 2009 revealed that the Veteran complained of anxiousness and obsessive worry about financial issues. A mental status evaluation reported that the Veteran was appropriately dressed. His mood was fair, and his manner was friendly and cooperative. His speech was appropriate, and he was well oriented. His memory function was normal, his affect was appropriate, and his judgment was good. There was no evidence of delusions, disorganized thinking, or hallucinations. His appetite was normal, and his energy level was average. He denied suicidal and homicidal thoughts. He reported some nightmares and occasional insomnia. A clinical assessment of generalized anxiety and depression were offered. The Veteran was afforded a VA examination in October 2009. He reported depression related to employment promotions. As for social functioning, he stated that he has been married for 26 years but noted a lot of arguing. He denied having a lot of friends and stated that he does not want to get close to anyone. The Veteran had subjective complaints of hopelessness, irritability, and depression. His mental status examination was normal, with the exception that he reported that he had suicidal ideations but "none of serious intent" and that it "crosse[d] [his] mind, but [he] never would." It was noted that his speech showed signs of stress while recounting events or dreams and his mood was "kinda down." He denied delusions, hallucinations, suicidal ideation and homicidal ideation. The examiner concluded that the Veteran did not meet the DSM-IV criteria for PTSD despite persistent reports of symptoms that that he exhibited signs of secondary gain motives displayed on prior examinations. Notably, the examiner stated that the Veteran's avoidance and hyperarousal symptoms were either insignificant or not necessarily related to his reported service incident. The examiner opined that the Veteran's statements lacked credibility and were consistent with exaggeration due to his motivation to seek a PTSD diagnosis for purposes of secondary gain. The Veteran was seen by a private psychologist, Dr. D.G. in February 2010. It was noted that he dressed casually for the appointment. He spoke quietly and his affect was flat, somewhat sad and angry. He was cooperative during the evaluation. His vocabulary was indicative of above average intelligence. His answers were short and somewhat impoverished, which was compatible with depression. The Veteran told the psychologist that since the Navy, he lost confidence in himself and in his judgment. He reported having difficulties getting close to anyone and complained of feelings of impatience and anger towards his children. On one occasion, he shouted at a stranger at the grocery store because she was eating samples with her fingers. He admitted that it was an overreaction, but that he could not inhibit his anger outburst. He went through a period of thrill seeking and was riding rodeo horses. However, it ended when he injured his knee in 1982. He reported that he did not socialize. He is currently married to his second wife whom he shared three children with. He indicated that the marital relationship was not a close one and that they have not been intimate for nearly nine years. He reported difficulty sleeping with frequent nightmares about his experience in service. He also reported that he had been under treatment with medication to manage his irritability and anxiety. The psychologist found that the Veteran's symptoms result in significant distress and impairments in social, occupational, and other important areas of functioning. In August 2010, the Veteran reported feeling hopeless about the future. In a June 2012 statement, the Appellant recalled that the Veteran often said that "he would be better off dead." In a follow up visit with Dr. D.G. in October 2010, it was reported that the Veteran was seen due to feelings of hopelessness and depression related to his career. He complained that his military experience "destroyed" a potential career he could have had. He expressed hopelessness about his future. He reported sleep disturbance and depressed affect. Dr. D.G. concluded that the Veteran was exhibiting signs of a major depressive episode to a moderate degree of severity. Based on a July 2012 VA examination report, the examiner found that the Veteran did not meet the DSM-IV criteria for PTSD. Instead, a diagnosis of personality disorder not otherwise specified was provided. The examiner noted that the Veteran did not have more than on mental disorder diagnosed. The following symptoms were noted: depressed mood, anxiety, and difficulty in adapting to stressful circumstances, including work or worklike setting. The examiner concluded that the Veteran suffered from occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. However, pertinent to PTSD, the examiner found that PTSD did not cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Notably, on examination, the Veteran reported that his level of depression was an 8 out of 10 and chronic worry. He reported marital difficulties, problems related to upcoming surgeries for physical ailments, fear related to his family and financial well-being, loss of interest in his cooking hobby, sleep disturbances, being easily angered and irritable with his family. As for work, the Veteran reported working as an accounting technician for the past four years. He said that his only problem with the job was that it was boring, but later contradicted himself that he dreaded going to work. The examiner concluded that the Veteran produced a moderate elevated profile with some indication of symptom exaggeration. The examiner emphasized that the Veteran did not meet the criteria for PTSD and that his behavior during the examiner was consistent with compensation seeking behavior. While the examiner acknowledged that the Veteran may very well have mental health problems, it is his belief that the Veteran exaggerated his symptoms. Overall, it is likely that his symptoms were more consistent with his nonservice-connected personality disorder, and that his reported anxiety and depression are unlikely related to his service. Based on another visit with Dr. D.G. in March 2012, the Veteran continued to demonstrate feelings of hopelessness, anxiety, and depression, which waxed and waned. Because of his experiences in service, the Veteran had recurrent difficulty dealing with authority figures in his workplace. It was his belief that he failed to achieve his career potential as a result of anxiety and depression caused by his service. His family relationships were strained, and he had little or no social life. The Veteran also expressed little faith in his own judgment despite his intelligence. The Appellant submitted a statement from the Appellant in June 2012 indicating that she had witnessed the Veteran's change in demeanor. He often complained about his bad experiences in service. He became unpleasant toward his family and often argued with her. He became more withdrawn since his return from service and even expressed that he would be better off dead. In June 2015, the Veteran called the Veterans' Crisis Line concerning suicidal thoughts. However, in a subsequent treatment note in July 2015, roughly two weeks later, the Veteran denied suffering from suicidal ideation. December 2015 VA treatment records documented a nurse phone call in which the Veteran was angry and shouted at her. A May 2017 private psychological report by Dr. N.T. showed that the Veteran sought psychiatric consult. He complained of nightmares, hypervigilance, insomnia, anxiety, and difficulty with concentration. The Veteran indicated that he did not begin seeking treatment until his symptoms began worsening in frequency and intensity to the point in which it affected his daily functioning. Upon review of the Veteran's medical history, the psychologist found that the Veteran did not demonstrate any psychiatric difficulties prior to enlistment and was doing well in the military until his traumatic in-service event. She found the Veteran to be a somewhat poor historian as he admitted to underreporting his symptoms. His mental status examination revealed that the Veteran had difficulty with self-care and socializing due to constant depression. He reported having less energy and withdrawn from things that he used to like. He also became distant toward his friends. Because of his psychiatric symptoms, the Veteran had moderate difficulty with concentration, problem solving, and learning a new task. He had mild difficulty in maintaining a conversation and understanding what people said. He also had moderate difficulty in joining community activities such as festivals or religious events. In using the DSM-V criteria, the psychologist found that the Veteran met the criteria for PTSD, rather than a personality disorder. In her rationale, the psychologist indicated that there was no evidence of a personality disorder prior to its first mention in January 1977 and that there was no substantiating evidence to support such diagnosis. In July 2012, the Veteran was given a diagnosis of a personality disorder based on a MMPI-2 profile. However, MMPI-2 it not a diagnostic tool and should not be used to render a diagnosis in that manner. In her opinion, the Veteran did not demonstrate the long-term characterological symptoms that indicate the presence of a personality disorder. Rather, his symptoms such as anxiety, constant worry, depressed mood, feelings of worthlessness, fatigue, agitation, obsession with home security, and sleep disturbances related to an in-service incident, all are better explained by a combination of PTSD, major depressive disorder, and anxiety disorder. In November 2018, the Appellant submitted an affidavit describing the Veteran's behavior prior to his death. She stated that her late husband experienced sleep difficulties, nightmares, had issues with his temper, and, during the last years of his life, she became fearful that he would hurt himself, as he was depressed and "often talked about ending it all." He was withdrawn and did not want to leave the house and stopped socializing with his friends. Towards the end of his life, the Veteran's anger outburst intensified as he would yell and throw tantrums over small things. The Veteran was ultimately granted service connection for PTSD by a June 2017 Board decision. However, the question as to his assigned rating remained on appeal. In May 2020, the Appellant argued that when the Board denied a rating higher than 50 percent in May 2019, it failed to adequately consider the Veteran's multiple suicidal ideations, only identifying one occurrence in June 2015 (when the Veteran called the Crisis Line). She also highlighted that in November 2017, the Veteran demonstrated a significant lack of care for himself when he refused medical treatment for his hepatic encephalopathy. Later, his combative behavior in October 2017 in which he again refused all medical care ultimately led to his death. The Board also failed to consider the Appellant's June 2012 statements, in which she recalled the Veteran saying that he was better off dead. She also highlighted that the Veteran's severe anger issues, poor impulse control, lack of self-care and his inability to deal with stress or adapt to stressful circumstances, all support a rating higher than 50 percent. See May 2020 Third Party Correspondence. Adding to her arguments for a higher rating, the Appellant asserts in an October 2021 correspondence, that in its January 2021 denial, the Board relied heavily on the finding that the Veteran's symptoms were attributable to a personality disorder, rather than PTSD. The Board did not adequately consider the April 2017 private medical opinion, which found that the Veteran's personality disorder diagnosis was based on an invalid MMPI-2 test. Instead, the Board should place more probative weight on the April 2017 medical opinion, which found that the Veteran demonstrated significant symptoms caused by PTSD, which would closely more proximate a 70 percent rating. The Appellant also reiterated that the Board failed to explain why the Veteran's multiple reports of suicidal thoughts do not warrant a 70 percent rating. She added that the Board also failed to consider other supportive symptoms such as the Veteran's obsessive locks and lights checking and neglect of personal appearance and hygiene. See October 2021 Appellate Brief. In reviewing the record, the Board now finds that an initial rating of 70 percent is warranted for the Veteran's service-connected PTSD. The Board finds the level of impairment caused by the Veteran's symptoms most closely approximates a 70 percent rating due to his difficulty establishing and maintaining effective relationships, inability to adapt to stressful situations in a work or worklike setting, anger outburst, irritability, sleep disturbances, and passive suicidal ideations. This conclusion is bolstered by the overall findings of the various psychological evaluation reports. The Board notes that the claims file contains conflicting reports as to the severity of the Veteran's psychiatric symptoms. For example, the December 2008 and the June 2012 VA examination reports found against a diagnosis of PTSD. In fact, both reports found that the Veteran's symptoms were exaggerated, and his reported symptoms did not warrant a higher rating. The June 2012 VA examiner found that the Veteran's symptoms were attributed to a personality disorder that is unrelated to his military service. However, in contrast, private psychological evaluations from Dr. D.G. and Dr. N.T. found that the Veteran exhibited symptoms of PTSD and that his condition warrant a higher rating than 50 percent. In negating the findings of the December 2008 examination, Dr. N.T. argues in her May 2017 report that the criteria under MMPI-2 is invalid for the purposes of offering a clinical psychiatric diagnosis. Rather, the DSM-V criteria is preferred. The Board agrees. Under the DSM-V, Dr. N.T. diagnosed the Veteran with PTSD and offered adequate rationale in support of her conclusions. The Board notes that the June 2012 VA examination report found against a PTSD diagnosis with the DSM-V criteria. However, in resolving reasonable doubt in the Veteran's favor, the Board finds that there is sufficient medical evidence to support a diagnosis of PTSD. Based on the April 2017 medical opinion, the Veteran had been experiencing increasing severity in his psychiatric symptoms since his release from service. His treatment records show consistent complaints of impaired judgment, insomnia, nightmares, anger issues, and irritability. In a February 2010 report, Dr. D.G. noted that the Veteran exhibited grossly inappropriate behavior when he yelled at a stranger at a grocery store, a reaction in which the Veteran himself admitted as an overreaction. He was withdrawn and distant from his own family and required medication to manage his anxiety. By March 2012, the Veteran's symptoms continued, impacting his work relationships in addition to his family life. The April 2017 private opinion found that the Veteran demonstrated feelings of worthlessness and developed an obsession over checking his locks and lights at his house for safety. The Veteran was also careless towards his appearance and hygiene. Moreover, the Board highlights the Veteran's chronic problem with suicidal thoughts. The Appellant has asserted that prior to his death, the Veteran expressed suicidal ideations on multiple occasions, which waxed and waned over the years. The Board agrees. In October 2009, the Veteran indicated that he had suicidal ideations, although he did not intend to carry it out. In June 2012, the Appellant recalled the Veteran expressing that he would be "better off dead." Then, in June 2015, the Veteran called the Crisis Line to report his suicidal thoughts. Based on the Appellant's November 2018 affidavit, she also recalled the Veteran indicating that he wanted to end it all. Even though the Veteran denied any real intent or plans in carrying out his suicidal thoughts, the fact remains that treatment records documented passive suicidal thoughts over the course of several years, with no sign of improvement. The Veteran even called a suicide hotline on occasion as a preventative measure. While acknowledging that VA must engage in a holistic analysis in which assessing the severity, frequency, and duration of the signs and symptoms of the Veteran's service-connected psychiatric disability, the Court indicated that suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. Bankhead v. Shulkin, 29 Vet. App. 10, 2021 (2017) (the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas). The Court has found that the term "suicidal ideation" does not require an intention to act or a specific risk of self-harm and instead consists of thought or thoughts of suicide. Bankhead, 29 Vet. App. 10, 2021. Given the Veteran's overall psychiatric symptoms, the Board finds that a rating of 70 percent is warranted for the period on appeal. The Board, however, finds that a rating of 100 percent has not been shown. The Appellant, through her representative, does not contend otherwise and the evidence of record also does not support such a finding. To warrant a total disability rating for PTSD, the Veteran must show total occupational and social impairment. The Board is mindful of the Veteran's deteriorated relationships with his family and friends. He had a difficult relationship with his supervisors and ultimately stopped working because of his overall condition. However, while his marriage was strained, the Veteran remained married to his wife and retained some level of relationship with her until the time of his death. The record also did not show other symptoms compensable under 100 percent rating such as persistent delusions or hallucinations. He did not have memory loss to the extent in which he forgot his own name or the names of his close relatives, nor was he disoriented to time and place. Therefore, the Board finds that the Veteran's overall psychiatric symptoms most nearly approximate a 70 percent rating, but no higher, for his service-connected PTSD. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Yeh, 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.