Citation Nr: 21072648 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-00 447 DATE: December 3, 2021 ORDER A rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to August 18, 2021 is denied. A rating in excess of 70 percent for PTSD from August 18, 2021 is denied. FINDINGS OF FACT 1. For the period from July 30, 2018 to August 18, 2021 the Veteran's service-connected PTSD is not shown to have been manifested by 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 interfered with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. 2. For the period from August 18, 2021 the Veteran's PTSD has not been manifested by 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; or memory loss for names of close relatives, own occupation, or own name. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD prior to August 18, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 70 percent for PTSD from August 18, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1968 to December 1969. His decorations include the Vietnam Service Medal, the Parachutist Badge, and the Purple Heart. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In June 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. Unfortunately, as noted in correspondence sent to the Veteran in July 2021, a complete transcript of that hearing could not be produced due to audio malfunctions within the recording system. Accordingly, he was offered the opportunity to testify at another hearing. The July 2021 correspondence informed the Veteran if he did not respond within 30 days, it would be assumed that he did not desire another hearing. As no response has been received, the Board will proceed to address the merits of his case. Following the June 2021 hearing, the Board remanded the Veteran's case to the agency of original jurisdiction (AOJ) for additional development, to include a new PTSD examination. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a rating in excess of 50 percent for PTSD prior to August 18, 2021 Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. The law mandates resolving any reasonable doubt regarding the degree of disability in favor of the claimant. 38 C.F.R. § 4.3. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran's service-connected PTSD is evaluated under the general rating formula used to rate psychiatric disabilities other than eating disorders, pursuant to 38 C.F.R. § 4.130. Under the general rating formula, a 50 percent rating is warranted when there is 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is 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. The United States Court of Appeals for Veterans Claims (Court) has held that the use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. Use of such terminology permits consideration of the symptoms listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. The Veteran's current claim for increase was received by VA on July 30, 2018. Following review of the record, it is the Board's conclusion that during the period on appeal prior to August 18, 2021, the evidence does not establish that the Veteran's PTSD met or more nearly approximated the criteria for a rating in excess of 50 percent, to include on the basis of additional "staged" ratings. Initially, the Board notes that a September 2018 VA examiner indicated that none of the symptoms explicitly listed in the general rating formula were present. The examiner stated that the Veteran's interview and self-report indicated that his mental status within normal limits with no problematic symptoms reported, observed, or noted. No related history of suicidal ideation or aggression towards self or others was reported or noted. Further, the Veteran reported that he had no current need for treatment, and that he had the sophistication to seek treatment and mental health intervention, as he had in the past, should the need arise in the future. It was also noted that he had been married to his spouse since 1970; that he had one child and four grandchildren; and that he had great family relationships, was involved in their lives, and they all lived in the same town. With respect to occupational and social impairment, the examiner indicated that a mental condition had been formally diagnosed, but symptoms were not severe enough to either interfere with occupational and social functioning or to require continuous medication. The Board acknowledges that the Veteran contended in his November 2018 Notice of Disagreement (NOD) that the September 2018 VA examination was inadequate. However, as set out in further detail below, nothing in the other evidence of record demonstrates that he satisfied the criteria for a rating in excess of 50 percent prior to August 18, 2021. In pertinent part, a thorough review of the record relating to that period does not demonstrate the presence of symptoms such as suicidal ideation; obsessional rituals which interfered with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or an inability to establish and maintain effective relationships. He did experience symptoms not expressly enumerated by the schedular criteria, such as intrusive thoughts, flashbacks, hypervigilance, and exaggerated startle response. However, the record does not reflect that his PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood during that time frame. In this regard, the Board notes there are references in the record to symptoms such as anxiety, depression, and chronic sleep impairment, to include recurrent nightmares, throughout the appeal period. However, such symptoms are generally associated with the schedular criteria for a 30 percent rating. The Board also notes that the record reflects that the Veteran has used medication for treatment of his PTSD. However, the use of medication is contemplated by the schedular criteria. In pertinent part, the criteria for a 10 percent rating contemplates symptoms controlled by continuous medication. Treatment records dated in April 2018 reflect that the Veteran had minimal risk of harm to self or others. It was noted that he had no prior mental health treatment. Symptoms included nightmares, intrusive thoughts, and sadness with recollection of trauma. He also reported some restlessness, and some limited socialization/ avoidance. Mental status examination found his appearance/grooming to be appropriate, with good hygiene. He was noted to be cooperative for attitude/behavior. He did have depressed mood. He was alert and oriented to person, place, and time. There were no perceptual distortions. Speech had normal rate and rhythm. Thought content was reality oriented/unremarkable. Thought process was logical. Judgment and insight were found to be good. Suicidal and homicidal ideation were both absent. Similar findings were noted on a mental status examination conducted in May 2018, although the Veteran's mood was noted to be anxious rather than depressed. Subsequent treatment records in July 2018 noted that he reported feeling better. His mood was noted to be within normal limits and insight was fair. Otherwise, the examination was consistent with prior the findings in April and May of that year. Treatment records from August 2018 reflect that the Veteran reported feeling better, and that intrusive thoughts and feelings of guilt were less. Nightmares occurred twice a month. It was noted that therapy was terminated the prior month due to improvement. Mood was euthymic and his energy was good. He did have difficulty concentrating. He was also noted as having hypervigilance, intrusive thoughts, exaggerated startle response, flashbacks, and avoidance of external reminders of trauma. As to psychomotor parameters, it was noted that he had no retardation or agitation. Thought content was normal. Further, on mental status examination his grooming was found to be appropriate to the situation and he was appropriately attired for the weather. His attitude was found to be cooperative. He had fair eye contact, motor and speech were normal, and his affect was congruent. Thought content/process was linear and logical. He was alert and oriented to person, place, time, and situation. His insight and judgment were fair. He denied suicidal and homicidal thoughts. Treatment records from September 2018 noted no recent mood changes or suicidal or homicidal ideation. Treatment records from February 2019 noted that the Veteran reported an increase in thoughts of combat in the past month. He was sleeping 8 hours, with nightmares approximately 3 to 4 times per month. He reported that his depressed mood "comes and goes." Anxiety was chronic and he stayed close to home, which was not a new situation for him. He continued to have difficulty concentrating. He still had no retardation or agitation for psychomotor parameters. Thought content was normal. On mental status examination, his mood was anxious. All other findings were consistent with those noted in August 2018. Subsequent records from March 2019 and September 2019 noted no recent mood changes or suicidal or homicidal ideation. On neurologic evaluation, it was noted that he was alert and oriented. Treatment records from February 2020 noted that the Veteran reported that he had had issues with depression and PTSD, but was stable on current medications. He reported having no crying spells, insomnia, or suicidal or homicidal ideation. Psychiatric evaluation showed judgment and insight were within normal limits. He was alert and oriented times three, recent and remote memory were intact, and no mood disorder was noted. He was also found to have an appropriate affect. A May 2021 social work note reflected that the Veteran did not have any current or recent suicidal or homicidal ideation. He did have bad memories noted as part of his PTSD symptoms, and flashbacks and nightmares about two to three times per week. He was alert and oriented to person, place, time, and situation. Additional treatment records from May 2021 reflect that the Veteran was positive for anxiety, depression, and memory loss. His PTSD screening was negative, and he provided negative responses to suicide screening. Granted, he did indicate that during his lifetime he had done something, started to do something, or prepared to do something to end his life. However, no specific details were noted, and it was stated this had not occurred during the last three months. As noted above, prior records consistently reflect the absence of suicidal ideation during the period here under consideration. The Board acknowledges that treatment records from February 2020 included a notation of anger issues. Further, the Veteran's spouse provided a statement in July 2018 which also indicated that he had such issues, particularly upon his return from service. However, a thorough review of the evidence of record relevant to the period under consideration does not reflect the presence of the type of impaired impulse control, such as unprovoked irritability with periods of violence, contemplated by the criteria for a 70 percent rating. In light of the foregoing, and after thorough review of all of the evidence of record pertaining to this period, the Board finds that the preponderance of the evidence is against a rating in excess of 50 percent for the Veteran's PTSD prior to August 18, 2021. His symptomatology and level of occupational and social impairment are consistent with the current 50 percent rating. For example, the references to difficulty concentrating appear consistent with symptoms such as difficulty in understanding complex commands and impaired abstract thinking. His noted memory problems appear to be of no more severity than those contemplated by the 50 percent rating. To the extent he stayed close to home and had some limited socialization/avoidance, that appears to be consistent with difficulty in establishing and maintaining effective work and social relationships. To the extent he had anxiety and/or depression, the record does not reflect that it was analogous to near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. Moreover, on medical evaluation, no impairment was noted regarding speech, orientation, grooming, or hygiene. The Veteran's judgment was also found to be fair to good, and it was noted that he participated in activities with family members. The criteria for a 70 percent rating for the period on appeal prior to August 18, 2021 have not been met. 2. Entitlement to a rating in excess of 70 percent for PTSD from August 18, 2021 For the period from August 18, 2021, the Board finds that the Veteran's PTSD is not shown to meet or more nearly approximate the criteria for a rating in excess of 70 percent, to include on the basis of additional "staged" rating(s). In pertinent part, the Board notes that a VA examination conducted on August 18, 2021 noted symptoms of depressed mood; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and an inability to establish and maintain effective relationships. Such symptoms are generally associated with, at most, the current 70 percent rating. The examination report does not show that the Veteran's PTSD was manifested by gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or symptoms of similar duration, frequency, and severity. The Board further notes that the August 2021 VA examiner found that the Veteran's symptomatology resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. Although the examiner's assessment in that regard is not dispositive, it is evidence to consider. Moreover, it appears to be consistent with the evidence. Nothing in the remainder of the record demonstrates that the Veteran's PTSD meets or nearly approximates symptomatology resulting in total occupational and social impairment. The Veteran has not identified any inaccuracy with respect to the findings of the August 2021 VA examination; nor has he reported that his service-connected PTSD has further increased in severity since the time of that examination. In light of the foregoing, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 70 percent for the Veteran's PTSD for the period on appeal from August 18, 2021. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.