Citation Nr: A21018441 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 181228-2124 DATE: November 18, 2021 ISSUE Entitlement to a disability rating in excess of 50 percent prior to March 8, 2017 for service-connected post-traumatic stress disorder (PTSD). ORDER Entitlement to a disability rating in excess of 50 percent prior to March 8, 2017 for service-connected post-traumatic stress disorder (PTSD) is denied. FINDINGS OF FACT Prior to March 8, 2017, the Veteran's service-connected post-traumatic stress disorder (PTSD) was manifested by symptoms of avoidance, depression, anhedonia, irritability, anxiety, and chronic sleep impairment, all summarized as having an occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW For the period prior to March 8, 2017, the criteria for a disability rating in excess of 50 percent for service-connected post-traumatic stress disorder (PTSD) have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the U.S. Army from September 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written consistent with the new AMA framework. By way of background, the October 2014 rating decision granted the Veteran entitlement to service connection for post-traumatic stress disorder (PTSD) with a 30 percent disability rating, effective October 11, 2013. The Veteran filed a Notice of Disagreement (NOD) that same month. The Veteran was issued a statement of the case (SOC) at the same time as he was issued a subsequent May 2017 rating decision, which increased his disability rating from 30 percent to 70 percent, effective March 18, 2017. He was also granted entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU), effective March 18, 2017. A subsequent NOD was filed in May 2017 with that disability rating and the effective date of the 70 percent rating. Following that NOD, he was issued an SOC, and the Veteran filed a VA Form 9 in August 2017, appealing the claims to the Board. In May 2018 however, the Veteran elected the modernized review system, through the Rapid Appeals Modernization Program (RAMP), effectively withdrawing his claim from the Legacy system, prior to its certification to the Board. 38 C.F.R. § 19.2 (d). He received an AMA rating decision in December 2018. That same month, the Veteran elected Direct Review by the Board based on the evidence of record at the time of the prior decision. In May 2019, the Board issued a Decision which, in relevant part, denied entitlement to an effective date earlier than October 11, 2013 for the initial grant of entitlement to service connection for PTSD. That same decision changed the effective date of the 70 percent rating from March 18, 2017 to March 8, 2017. The Decision then increased the disability rating from 30 to 50 percent for the period prior to March 8, 2017. Thus, the Veteran's disability rating for PTSD became 50 percent prior to March 8, 2017 and 70 percent thereafter. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court remanded the matter back to the Board in May 2020. Importantly, the May 2020 JMR noted that the only issue that remained on appeal was entitlement to a disability rating in excess of 50 percent prior to March 8, 2017, and that all other issues related to the disability rating and the effective dates of such ratings were considered waived. Following the JMR, the Veteran's attorney submitted correspondence in May 2020 indicating the Veteran's intent to submit additional evidence, as well as a request to remand the matter to the Agency of Original Jurisdiction (AOJ) to review that evidence. However, as discussed above, the Veteran had selected the Direct Review option for his appeal, which precludes the submission of additional evidence. In addition, the Veteran, through his Attorney's May 2020 correspondence, questioned the qualifications of the VA examiners who performed examinations in this case, and requested that VA produce the qualifications of those examiners. There is a presumption that a VA examiner is competent, which is referred to as the presumption of competency, and there is no requirement that a VA examiner is the most highly qualified in a medical discipline. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). Once a veteran raises a challenge to the competency of the medical examiner, the presumption has no further effect, and, just as in typical litigation, the side presenting the expert must satisfy its burden of persuasion as to the examiner's qualifications. Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019). The Board must make factual findings regarding the qualifications and provide reasons and bases for concluding whether the medical examiner was competent to provide the opinion. Typically, a claimant must have the ability to secure from the VA the information necessary to raise the competency challenge. Once the request is made for information as to the competency of the examiner, a claimant normally has the right, absent unusual circumstances, to the curriculum vitae and other information about the qualifications of a medical examiner. This is mandated by the VA's duty to assist. Francway, Id, at 1308. However, pursuant to the provisions of the AMA, the Board reviews the record only to correct pre-decisional Duty to Assist errors. In this case, the examination in question was conducted in October 2014, the AMA rating decision on appeal was issued in December 2018, and the challenge to the VA examiner's competency was received in May 2020. Because the challenge was received after the rating decision, the failure to provide the VA examiner's qualifications to the Veteran does not represent a pre-decisional Duty to Assist error and no further action is warranted. Following the May 2020 Court JMR, the Board again denied entitlement to a disability rating in excess of 50 percent for service-connected PTSD in an October 2020 Board Decision. Most recently, the Veteran, through his Attorney, again appealed that October 2020 Board Decision to the Court. In another JMR from July 2021, the Court vacated the October 2020 Board Decision and remanded the issue to the Board for further adjudication. As such, the issue has returned to the Board. Entitlement to a disability rating in excess of 50 percent prior to March 8, 2017 for service-connected post-traumatic stress disorder (PTSD). The Veteran has claimed that he is entitled to a higher disability rating for the period prior to March 8, 2017 for his service-connected PTSD. See October 2014 NOD. The Board finds it appropriate to first address the most recent Court JMR from July 2021, prior to re-adjudicating the Veteran's claim. The July 2021 Court JMR highlighted a statement that the Veteran's Attorney had submitted on March 22, 2017 arguing that the Veteran is entitled to a disability rating higher than 50 percent. The JMR also noted that the Veteran's Attorney had included a private psychological opinion, dated March 18, 2017, which the Attorney cites as evidence that "the Veteran should be granted a 70 percent disability rating." As such, the JMR remanded the issue so that the Board could "address the March 2017 private opinion and Appellant's Attorney's March 2017 argument." No further issues were cited by the Court JMR. In response to the Court JMR, the Board finds that the Board is restricted from considering the March 18, 2017 private psychological opinion. The current issue on appeal is entitlement to a disability rating in excess of 50 percent for PTSD, prior to March 8, 2017. And as noted from the procedural history above, the Board had previously moved the effective date of the 70 percent disability rating from March 18, 2017 to March 8, 2017. The Veteran's claim of entitlement to a disability rating for the period from March 8, 2017 forward was already decided by the Board in May 2019. Furthermore, that issue had not been vacated by the Court JMR in May 2020. Furthermore, the JMR indicated that the appeal for that portion of the staged rating was considered waived. The Attorney's argument cites to the March 18, 2017 private psychological opinion, which would thus be considered evidence for the later staged rating period, which again, is not currently on appeal. Additionally, the Board recognizes that the JMR cites to the private psychological opinion, which states that Veteran should be granted a 70 percent rating. The Board had already incorporated that private psychological opinion in the May 2019 Decision. In fact, that private psychological opinion was one of the reasons that the Veteran was granted a 70 percent rating for that later period on appeal. Essentially, the JMR is directing the Board to consider evidence from the March 18, 2017 private psychological report for the earlier period on appeal: the period prior to March 8, 2017. Such a consideration would be counter to the law as it relates to staged ratings, as well as the precedent set by Fenderson v. West, 12 Vet. App. 119, 126 (1999) (higher evaluations may be assigned for separate periods based on the facts found during the appeal period). Finally, the Board also notes that the private psychological opinion does not provide a retrospective opinion, and therefore the report could not conceivably be applied to the period prior to March 8, 2017. The private psychologist specifically notes that the report simply provided the disability picture as of that moment, and thus, the Board finds that applying that current severity retroactively would provide an inaccurate assessment of the Veteran's disability picture for the period prior to March 8, 2017. As such, the Board has considered the July 2021 Court JMR and finds that the arguments submitted by the Veteran's Attorney, which includes consideration of the March 18, 2017 private psychological report, are not relevant for the current issue on appeal. A JMR, when drafted properly, identifies clear instructions to the Board as to what it is required to address, and what actions it is required to take, on remand. This increases administrative, as well as judicial, efficiency. Carter v. Shinseki, 26 Vet. App. 534, 541 (2014), vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (2015). Importantly, the July 2021 Court JMR has raised no further issues as it relates to the Board's prior Decision from October 2020. As such, the Board may now turn to the merits of the Veteran's claim. Turning to the issue on appeal, the Veteran has claimed that he is entitled to a disability rating higher than 50 percent for his service-connected PTSD. The Veteran is assigned a 50 percent rating for his PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411, which is part of the General Formula for Mental Disorders (General Formula). Under that formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. As an initial matter, the Board also must address the findings of the May 2020 JMR, which was addressed by the Board in October 2020, but has since been vacated. During an October 2013 private evaluation, the Veteran described "recurrent thoughts of death." The May 2020 JMR stated that the Board's May 2019 decision "failed to address whether Appellant's thoughts of death warranted a rating in excess of 50 percent pursuant to Bankhead." Passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing you were dead, while active suicidal ideation entails thoughts of self-directed violence and death. Bankhead at 20. There is no evidence that the Veteran experienced thoughts of suicide during the relevant period, including any thoughts, passive or active, relating to his own death. Indeed, the same private examiner who noted the Veteran's recurrent thoughts of death specifically stated, in two separate instances, that suicidality was not present. See October 2013 private evaluation. Moreover, as part of the examination, the Veteran described witnessing the death of one individual "right in front" of him and noted the deaths of three individuals in an adjoining building, during an attack. He also described a history of flashbacks and intrusive thoughts of his Vietnam service. Given this information, and the examiner's clear, competent finding that suicidality was not present, it is likely that the Veteran's recurrent thoughts related to deaths he had witnessed or experienced, and not his own death. For these reasons, the Board finds that suicidal ideation was not present. See Marrero v. Gober, 14 Vet. App. 80, 81 (2000) (recognizing that the application of law to fact is reviewed under the deferential "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard); Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (debatable determinations based upon the facts of an individual case must be respected absent an abuse of discretion). The Veteran has not submitted any statements describing the symptoms of his service-connected PTSD during the period prior to March 8, 2017. The only relevant statement was his NOD from October 2014, whereby he requested a higher disability rating. As noted above, the Veteran's claims file contains an October 2013 private psychological report. The private examiner discussed the Veteran's medical, military, family and educational history. The examiner confirmed the Veteran's diagnosis of PTSD. The examiner then noted symptoms of avoidance, depression, and anhedonia. The examiner noted that the Veteran was in a good marriage, as his wife was "his primary support system," and that he "appeared to be well motivated for treatment." The Veteran was described to have difficulties with impulse control, "irritability and angry outbursts." The Veteran was also given a VA examination in October 2014. The Veteran was seen in person, and his claims file was reviewed. The examiner confirmed that the Veteran had a diagnosis of PTSD, per the DSM-5 criteria. The examiner summarized the Veteran's occupational and social impairment as causing an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The examiner noted symptoms of depressed mood, anxiety, and chronic sleep impairment. The Veteran appeared anxious during the exam, but he generally had good memory and concentration following clinical testing. The Veteran was neatly dressed and groomed and had a "polite and cooperative" mood. The Veteran denied hallucinations/delusions, and denied thoughts of a plan, intent, or past attempts regarding any suicidal or homicidal ideation. No further symptoms were noted. There is no evidence that either the VA examiner or the private examiner were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran's PTSD. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the severity of the Veteran's service-connected PTSD more nearly approximates the 50 percent disability rating for the period prior to March 8, 2017. To begin, the private psychological report noted symptoms of avoidance, depression, anhedonia, as well as issues with impulse control and irritability. Despite that, the examiner also noted that the Veteran had a good marriage with his wife being a good support system, and that the Veteran was motivated for treatment. The October 2014 VA examiner noted symptoms of depressed mood, anxiety, and chronic sleep impairment only. They indicted that the Veteran was neatly dressed, was polite and cooperative, and that he denied any hallucinations, delusions, as well as suicidal or homicidal intent. The examiner summarized the Veteran's occupational and social impairment as having an occasional decrease in work efficiency, which the Board notes actually reflects the 30 percent disability rating, not the 50 percent rating. Having said that, the Board will not disturb the current 50 percent rating for the period prior to March 8, 2017. At no point has the Veteran demonstrated the requisite symptomatology during this period on appeal for the 70 percent rating. There is no indication that he experiences obsessional rituals; intermittently illogical, obscure or irrelevant speech, spatial disorientation; a neglect of personal appearance and hygiene; and/or an inability to establish and maintain effective relationships. While the Veteran was noted to have periods of irritability with angry outbursts, the Board does not find this to rise to the level of unprovoked irritability with periods of violence, as reflected by the 70 percent disability rating. Thus, for the period prior to March 8, 2017, this symptomatology more nearly approximates the current 50 percent disability rating, and the preponderance of the evidence is against a finding that the Veteran's symptomatology is of the severity and frequency to cause the level of occupational and social impairment associated with a 70 percent disability evaluation. The 50 percent rating best summarizes the Veteran's occupational and social impairment as manifested by reduced reliability and productivity. See Bankhead v. Shulkin, No. 15-2404, slip op. at 10 (U.S. Vet. App. Mar. 27, 2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). DC 9411. (Continued on next page.) As such, based on the Veteran's overall symptomatology and the resulting occupational and social impairment stemming therefrom, the Board finds that the preponderance of the evidence is against the assigment of a rating in excess of 50 percent for the Veteran's service-connected PTSD, for the period prior to March 8, 2017. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.