Citation Nr: 21069898 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-32 042 DATE: November 22, 2021 ORDER An initial evaluation of 70 percent, but not higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The Veteran's PTSD symptoms have been manifested, at worst, by occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial disability rating of 70 percent, but not higher, for the Veteran's service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Marines from July 1966 to July 1972 and in the Coast Guard from January 1973 to August 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2015 rating decision that granted entitlement to service connection for posttraumatic stress disorder (PTSD) with an initial disability rating of 30 percent. The Veteran requested a Board hearing; however, a December 2020 Report of General Information shows the Veteran sent in a request to withdraw his request for a Board hearing. Thus, the Veteran request for a hearing is deemed withdrawn. This matter was previously before the Board in August 2021. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on the veteran's average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate DCs identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The standard of proof to be applied in a decision on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. §5107 (b); see also 38 C.F.R. §§ 3.102; 4.3. "This unique standard of proof is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an 'approximate balance of positive and negative evidence.' By tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). An initial evaluation of 70 percent, but not higher, for PTSD is granted. As reflected by his April 2015 Notice of Disagreement (NOD), the Veteran contends he is entitled to an initial rating of 70 percent for his PTSD. A January 2015 rating decision granted service connection for the Veteran's psychiatric condition with an evaluation of 30 percent effective January 27, 2012, which is the date of the Veteran's claim. For the reasons discussed below, the Board finds the Veteran's service-connected psychiatric condition warrants an initial evaluation of 70 percent. The Veteran's PTSD has been assigned a 30 percent rating under DC 9411. See April 2020 Codesheet. Almost all mental health disorders, including PTSD, are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. See 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula, a 30 percent disability rating requires: 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, or recent events). A 50 percent disability rating requires: 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 requires: 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; inability to establish and maintain effective relationships.) A 100 percent disability rating requires: 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. Id. The symptoms associated with each evaluation under the General Rating Formula do not 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, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. Rather, VA must consider all symptoms of a claimant's condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed. 1994) (DSM-IV) or the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-V). If the evidence demonstrates the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, 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. 38 C.F.R. § 4.126 (2018); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Accordingly, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. See Vazquez-Claudio, 713 F.3d at 118. While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126. Turning to the evidence of record, the Veteran underwent a VA examination in August 2012. The examiner found no diagnosis of a mental disorder. The Veteran reported having friends while in the military but since leaving the military, he has not developed any friendships. He also reported being married and has two sons with whom he has good relationships. He noted his leisure activities include fishing, working on vehicles, shooting, attending baseball games, playing slot machines, and working out. The Veteran reported working for the Army National Guard and denied any history of occupational problems. The Veteran denied a history of alcohol use prior to the military. However, after serving in Vietnam, he reported he began drinking heavily and getting into bar fights. The Veteran reported periodic intrusive memories of his combat experiences, particularly when his mood is dysphoric. When he recalls combat memories, he reports becoming sweaty and experiencing a racing heart. He denied combat-related nightmares or flashbacks and avoids talking about his combat experiences with people. He denied memory loss from his combat experiences. He also denied a loss of interest in activities and enjoys reading and watching television. He denied a restricted range of affect. He reported a decreasing ability to avoid confrontation and a long history of sleep disturbance in addition to a history of hypervigilant behaviors, irritability, and impatience. He further reported an inability to establish and maintain effective relationships. The Veteran's symptoms were found to include chronic sleep impairment and mild memory loss, such as forgetting names, directions, or recent events. The Veteran was found to be able to manage his financial affairs. The Veteran was seen in August 2013 for counseling. He reported being concerned about retirement because work had helped him deal with disturbing memories of past combat experiences. He also reported using alcohol to deal with disturbing memories of his past combat experiences and trouble speaking about his memories because he becomes sweaty, his heart races, and his breathing increases. He reported being unable to form close relationships for fear of losing that person or relationship. He reported survivor's guilt and that he can still see the faces of the friends he lost to combat. He further reported poor sleep and waking up to nightmares in sweat with feelings of fear. He averages about six hours of sleep nightly and uses alcohol to help him sleep. The Veteran reported he and his wife enjoys fishing and camping together. He denied current suicidal ideation, intent, or plan and any prior suicidal or homicidal attempts. He further denied current homicidal ideation, intent, or plan. On examination, the Veteran was noted to have dressed neatly and appropriate to the situation. He was well-groomed. The examiner stated rapport was slow to establish as the Veteran was initially found to be guarded, but he was also found to be polite. Eye contact was good, and unusual behaviors were not found. The Veteran was oriented to four spheres. He demonstrated no difficulty with attention, concentration, or memory. His thought processes appeared logical and focused, and judgment was found to be intact with a good insight. The Veteran's speech was noted to be clear, and rate was moderately slow with a normal volume. The examiner found no evidence of hallucinations, delusions, phobias, paranoia, or preoccupation. The Veteran reported a low mood and rated his mood as being a four on a scale of one to ten. His affect was tearful. The Veteran's psychiatric condition was assessed in January 2014. The treatment note documents the Veteran was currently employed in security. He described recurrent, distressing daily intrusive thoughts of combat experiences. He also reported recurrent, weekly distressing dreams and nightmares with content related to his combat trauma. The examiner noted the Veteran experiences avoidance behaviors and experiences anxiety when reminded of stressful events from combat. The Veteran also reported baseline hypervigilance and an exaggerated startle response. He denied suicidal ideation or homicidal ideation. No history of psychosis or delusion was found. On examination, grooming and hygiene were found to be appropriate, and the Veteran was found to be cooperative. No psychomotor agitation was noted. Speech and language were intact and within normal limits. Cognitively, the Veteran was found to be alert and oriented to four spheres. Attention and concentration were intact. Recent and remote memory were stated to be within normal limits. Mood was stated to be okay. Affect was neutral. Thoughts were found to be logical, linear, and goal directed, and thought content was reality based with no hallucinations, paranoia, or delusions. No hallucinations, paranoia, or delusions were found. Insight and judgment were found to be fair. A September 2014 Mental Health Outpatient Note is of record. The Veteran reported significant conflict with others, including a physical altercation two weeks before. The Veteran identified significant avoidance behaviors. On examination, the Veteran presented as open and engaging and was dressed neatly and appropriately. His mood was noted to be somewhat anxious and at times depressed, and his affect was appropriate and congruent with his mood. He demonstrated good eye contact, and his speech was clear and coherent. The Veteran was found to be oriented to person, place, and time. His thought processes were documented to be coherent, logical, and goal directed. Memory functioning was stated to be adequate. The Veteran denied any suicidal ideation or homicidal ideation, and his thought content revealed no hallucinations or delusions. A VA examination from January 2015 is of record. The examiner found the Veteran experiences occupational and social impairment that consists of mild or transient symptoms, which decrease work efficiency and an ability to perform occupational tasks only during periods of significant stress; or symptoms are controlled by medication. The Veteran reported having lost many friends to combat in Vietnam, and as a result, he experiences an inability to establish and maintain effective relationships. He reported not socializing or keeping in contact with friends from active service. He stated, "[I] can't get close to people." He reported he and his wife tolerate each other and denied significant marital problems. He further reported good relationships with his two children. He noted he is hypervigilant and anxious in public, is easily startled, and he often carries a gun for protection. The Veteran reported working in security for the State of Nevada since 2001. Although he reported his psychiatric symptoms do occasionally make it difficult for him to interact with others effectively at work, the Veteran denied significant occupational impairment, and he reported never having any performance or attendance problems. He further reported participating in PTSD treatment since September 2013. He noted being sober since July 2013 and that therapy and psychiatric medications have helped control his symptoms. The examiner noted the Veteran arrived on time for his appointment. On examination, grooming and hygiene were noted to be good. The Veteran was found to be alert and cooperative throughout the examination. Expressive speech was fluent, and thought processes were logical. The Veteran described his mood as "not bad." Affect was congruent with his mood. He denied any current suicidal or homicidal ideation, plan, or intent. There were no indications of delusions, hallucinations, or other signs of frank psychosis. Insight and judgment were found to be intact. The Veteran's symptoms were found to include a depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; and a difficulty in establishing and maintaining effective work and social relationships. The Veteran was found to be able to manage his financial affairs. The Veteran underwent another VA examination in December 2015. The examiner found the Veteran experiences occupational and social impairment consisting of an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported living with his wife of 39 years, and he described the marriage as "alright." He denied a history of physical violence in the marriage. He reported having been verbally aggressive, and he "lost it" with his wife about six months before. He recalled he could see she had become fearful because of his verbal attack. Although he further stated he has never felt close with his children, he reported not being in regular contact with his adult children. He reported having one friend in Florida with whom he maintains irregular contact. He reported being unable to become close with people. The Veteran stated he recently lost his job because due to his seizures, he had lost his driver's licenses. During his career, he denied having had any significant attendance, disciplinary, reliability, or productivity problems. The report notes the Veteran has experienced occasional incidents of verbal aggression when startled or angered, but no history of physical aggression at work was reported. Occasionally, it was noted, he would "get in the face" of his supervisors if he felt "they did something wrong." The Veteran reported having had no close relationships with anyone at work, and the examiner noted a difficulty in establishing effective work relationships. At his last job, he reported regularly receiving "above average" job performance evaluations. Since losing his job, the Veteran reported an increase in sleep disturbance and depression, and it is difficult for him to "not have a schedule." The Veteran's symptoms were found to include a depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; and a difficulty in establishing and maintaining effective work and social relationships. The Veteran was found to be able to manage his financial affairs. The Veteran arrived on time for his appointment, and on examination, grooming and hygiene were found to be appropriate. Throughout the examination, he was noted to be alert and cooperative. Expressive speech was fluent. Thought processes were logical. The Veteran described his mood as "okay." Affect was constricted. He denied any current suicidal or homicidal ideation, plan, or intent. There were no indications of delusions, hallucinations, or other signs of frank psychosis. Insight and judgment were found to be intact. A March 2016 Suicide Risk Assessment shows the Veteran reported having had thoughts of killing himself once in the past month. A March 2016 treatment note documents the Veteran reported infrequent death ideation and passive suicide ideation and notes he reported infrequent death ideation and passive suicide ideation three times in 2016. He denied suicide plan or intent to act during these episodes but also reported having considered suicide by cop in the past. The Veteran was seen by VA psychiatry in April 2017. He reported his mood as being well. He also reported restless sleep but denied frequent nightmares. He indicated he had taken a job in security at the courthouse. He reported having a hard time with retirement and felt the job was a good fit for him. He reported keeping occupied with church activities. He indicated he avoids talking about Vietnam because he will experience intrusive thoughts, which cause distress. The Veteran denied interim suicidal ideation. On examination, grooming and hygiene appeared appropriate. He was cooperative. No psychomotor agitation was noted. Speech and language were within normal limits. Cognitively, he was alert and oriented appropriately. His attention and concentration were intact to conversation. Recent and remote memory were found to be within normal limits. Mood was described as "all right." Affect was neutral, and range was appropriate. He teared up talking about the memory of a friend who had been killed by a mortar. His thoughts were logical, goal directed, and of a normal rate. His thought content was reality based, and he denied suicidal ideation. No hallucinations were found. Insight and judgment were logical. The Veteran attended group counseling in September 2018. He reported working fewer hours and enjoying more time doing leisure activities. The Veteran reported taking a recent trip to Alaska. He also reported someone was refinishing his bathroom, and he did not like having a stranger in his home. On examination, it was noted the Veteran's affect was mildly euthymic and consistent with his reported mood. No evidence of suicidal ideation or homicidal ideation was found. A June 2019 Mental Health Outpatient Treatment Note is of record. The note states the Veteran is married and employed full time. The Veteran also reported maintaining compliance with his medications. The Veteran denied current thoughts of suicide or homicide and had no intentions of killing himself or others. On examination, the Veteran was noted to be dressed professionally and appropriately to the situation. He was polite and forthcoming about his experiences. Eye contact was normal. He sat in a relaxed posture and was found to be oriented to person place, and time. He demonstrated no difficulty in maintaining attention or concentration. His judgment and insight appeared intact. Memory functioning was adequate. Thought process was logical and goal-directed towards treatment. He denied hallucinations, delusions, or any symptoms of psychosis. His speech was clear and articulate. Affect was appropriate to session content. No evidence of suicidal or homicidal behavior, plan, or intent was found. The most recent VA examination is from September 2021. The examiner found the Veteran experiences occupational and social impairment that consists of an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported being married for 46 years. He described his marriage as "fine." He reported having a good relationship with his two sons. He stated he is a runner, which helps him relax. He noted he has friends he goes shooting with. He also reported being regularly involved with church and regularly attending Sunday mass. The Veteran stated he could tend to self-care needs, drive, and manage his finances and medications. The Veteran reported current symptoms related to the trauma he had experienced in Vietnam. He reported nightmares of Vietnam and experiences intrusive thoughts of combat "all the time." He continues to avoid large crowds, exposure to heavy rains, and conversations about Vietnam. Since Vietnam, he reports having intermittent anger, feelings of self-blame, survivor's guilt, intermittent sadness and anxiety, and detached behavior. He reported hypervigilance in social settings, being easily startled by unexpected surprises, and sleep disturbance from thoughts and nightmares of Vietnam. The Veteran denied current or recent suicidal, death, or homicidal ideation and denied a history of self-injurious behaviors. The Veteran's symptoms were found to include a depressed mood; anxiety; suspiciousness; and chronic sleep impairment. The Veteran was found to be able to manage his financial affairs. The examiner noted the Veteran drove himself to his examination. On examination, he was found to be dressed appropriately. Grooming and hygiene were appropriate. Ambulation was slow but steady. He did not exhibit uncontrollable movements or tics. Eye contact was appropriate to the context. Speech was unremarkable, and he reciprocated conversation without issue. He interacted appropriately and was cooperative and polite. Mood was mildly depressed with a congruent affect. Mood fluctuations were not observed. Thought process and content were linear and logical. He did not exhibit perceptual or delusional disturbance. Judgment and insight appeared intact. The Veteran presented as a fair historian. He was oriented to four spheres, alert, and conscious. He denied current suicidal, death, and homicidal ideation. The evidence dated throughout the period on appeal shows the Veteran's PTSD has been manifested by some symptoms supporting the assignment of a 70 percent disability rating, such as suicidal ideation and impaired impulse control such as unprovoked irritability with periods of violence. The Veteran has few friends and avoids making new friends. He experiences an inability to establish and maintain effective relationships and becomes easily and irrationally irritated with other people. Given he had reported suicidal ideation and physical altercations, such as in 2016, the Board resolves doubt in his favor and finds the criteria for a 70 percent rating for his PTSD have been more nearly approximated. See 38 C.F.R. §§ 3.102, 4.7. As such, resolving reasonable doubt in the Veteran's favor, the Board finds his symptoms more nearly approximate the criteria for a 70 percent rating for his service-connected psychiatric disorder. See 38 C.F.R. §§ 3.102, 4.7. While the frequency and severity of the symptoms of the Veteran's psychiatric disability have fluctuated, and there are periods in the record which suggest the condition may not have risen to the level of severity contemplated by a 70 percent rating, resolving all doubt in the Veteran's favor, the 70 percent evaluation is appropriate for the entire period on appeal. However, a rating of 100 percent, the next level at which the Veteran could receive benefits, requires a showing of total occupational and social impairment. After thoroughly reviewing the evidence, as summarized above, the Board finds a 100-percent evaluation is unwarranted because there is no evidence suggesting the Veteran suffers total occupational and social impairment due to his PTSD. Rather, the overwhelming majority of the evidence indicates he consistently denied symptoms of a severity comparable to those listed as representing examples of the 100% disability rating. For example, he consistently denied homicidal ideation, was found to be fully oriented, demonstrated normal thought processes and communication, could manage his finances independently, complete basic hygiene, and no serious memory loss, such as memory loss for names of close relatives, his own occupation, or his own name. The record also shows the Veteran had never been hospitalized for psychiatric symptoms. Additionally, the Veteran appeared to be employed full-time for most of the appeal period before retiring. The record does reflect significant social impairment due to the Veteran's PTSD symptoms. The evidence establishes his PTSD symptoms including angry outbursts, aggressive behavior, hypervigilance, and depressed mood have severely strained social relationships. However, he does maintain relationships with his family, including his wife and two children. He engages in activities that he enjoys. There is no evidence indicating that he has missed significant amounts of work due to his psychiatric symptoms. He has presented normally, and generally been found to have normal speech and thought processes. He has not reported ever being severely disoriented, and has not been noted to have illogical, obscure, or irrelevant speech. He has never had any hallucinations or delusions. Based on the entirety of this record, the Veteran's disability picture for his PTSD most closely approximates the 70 percent disability rating, because there is evidence of serious, but not total impairment. (Continued on the next page) Lastly, the Board finds that the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) has not been raised by the record as part of the Veteran's increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (the issue of entitlement to TDIU is part of an increased rating claim when that issue is raised by the record); see also Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (the issue of entitlement to TDIU is raised whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits"). While, as noted above, the Veteran has indicated that his PTSD has caused problems at work in the past, the evidence of record, including the Veteran's own statements, do not indicate his PTSD has precluded the Veteran from securing and following substantially gainful employment. On the contrary, VA examination reports and treatment notes demonstrate he worked full-time as a security guard with the State of Nevada and at a courthouse and is currently retired. The issue of entitlement to a TDIU has therefore not been raised. In summary, the Board finds the Veteran's social and occupational impairment affects his ability to function appropriately and effectively, and thus, meets the criteria for a 70 percent rating. Regarding entitlement to a 100-percent rating, there is no probative evidence suggesting total social and occupational impairment. Thus, while he is significantly and seriously impaired by his psychiatric symptoms, the preponderance of the evidence is against finding that his impairment arises to the kind of gross impairment contemplated by a 100 percent rating. Consequently, the criteria for a rating in excess of 70 percent are not met. P. M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.