Citation Nr: 21072691 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 16-24 530A DATE: December 6, 2021 ORDER Prior to May 28, 2013, an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD) is denied. From May 28, 2013 through October 13, 2015, an initial rating of 50 percent for PTSD is granted. From May 28, 2013 through February 12, 2021, an initial rating in excess of 50 percent for PTSD is denied. FINDINGS OF FACT 1. Prior to May 28, 2013, the severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. From May 28, 2013 through October 13, 2015, the evidence is at least in equipoise as to whether the severity, frequency, and duration of the Veteran's PTSD symptoms more closely approximate occupational and social impairment with reduced reliability and productivity. 3. From May 28, 2013 through February 12, 2021, the severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. Prior to May 28, 2013, the criteria for an initial rating in excess of 10 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. Resolving all reasonable doubt in favor of the Veteran, from May 28, 2013 through October 13, 2015, the criteria for an initial rating of 50 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. From May 28, 2013 through February 12, 2021, the criteria for an initial rating in excess of 50 percent for PTSD have not been met. 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 CONCLUSIONS The Veteran served on active duty from August 1966 to June 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a September 2014 rating decision, which denied entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities and continued the 30 percent rating in effect for PTSD and the previously assigned ratings for other service-connected disabilities. In October 2014, the Veteran filed a notice of disagreement (NOD) regarding the September 2014 decision that denied a rating in excess of 30 percent for PTSD and denied a TDIU. After the agency of original jurisdiction (AOJ) issued a statement of the case (SOC) in April 2016, he timely appealed the issues of entitlement to a rating higher than 30 percent for PTSD and a TDIU. In August 2020, the Board remanded the appeal to the AOJ for additional development. For clarity, the Board notes that a December 2013 rating decision granted service connection for PTSD and assigned a 10 percent rating effective January 19, 2010, and a 30 percent rating effective May 28, 2013. Neither the Veteran nor his representative initiated an appeal of that decision by filing an NOD or otherwise expressing disagreement with that decision. Instead, in July 2014, the Veteran filed an application for a TDIU due to all of his service-connected disabilities, including PTSD. In addition to adjudicating the claimed issue of entitlement to a TDIU in the September 2014 rating decision, the AOJ adjudicated the issues of whether higher ratings were warranted for any of the Veteran's service-connected disabilities. Although the Veteran specifically appealed from the September 2014 rating decision, which denied a rating in excess of 30 percent for PTSD and a TDIU, the August 2020 Board Remand characterized the issue on appeal to include whether initial ratings higher than 10 percent and 30 percent for PTSD were warranted. Accordingly, although the Veteran did not appeal the initial 10 percent rating assigned for PTSD effective from January 19, 2010 or the initial 30 percent rating effective from May 28, 2013, the Board will include the initial rating issue because the August 2020 Board Remand identified those initial ratings as part of the current appeal. As a final introductory matter, after completing the requested development action from the August 2020 Board Remand, the AOJ increased the rating for PTSD to 100 percent effective February 13, 2021 and issued a supplemental statement of the case (SSOC). In March 2021, the Veteran filed a Decision Review Request: Supplemental Claim (VA Form 20-0995), electing to opt into the modernized review system of the Appeals Modernization Act (AMA) following the issuance of the February 2021 SSOC regarding the issue of entitlement to a TDIU. 38 C.F.R. §§ 3.2400(c)(2), 19.2(d)(2). The issue of entitlement to a TDIU is no longer part of this legacy appeal. Increased Ratings for PTSD In his October 2014 NOD, the Veteran asserted that his PTSD disability warranted a rating in excess of 30 percent. He suggested that an August 2014 VA examination was "inadequate for VA purposes because it failed to address relevant lay statements." Next, he cited laws and regulation relating to the issue of service connection. He did not identify any specific lay statements that were not addressed. In other correspondence received in October 2014, the Veteran reported he had quit his job as a maintenance worker in 2007 at the age of 62 due to lack of stamina and physical strength and difficulty dealing with other people due to irritability and difficulty concentrating. Under the General Formula for Mental Disorders, 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, 114-18 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated PTSD symptoms caused the level of impairment required for a disability rating higher than those currently assigned during each applicable time period. The Board concludes that the Veteran's PTSD symptoms more nearly approximated the criteria for a 50 percent rating from May 28, 2013 through October 13, 2015. However, his PTSD symptoms did not cause to level of impairment required for a disability rating of 30 percent or higher prior to May 28, 2013, or of a 70 percent rating or higher from May 28, 2013 through February 12, 2021. Instead, the Veteran's symptoms more closely approximated the symptoms associated with the 10 percent rating assigned prior to May 28, 2013 and the 50 percent rating assigned from May 28, 2013 through February 12, 2021, and resulted in a level of impairment that most closely approximated the level of impairment associated with each of those ratings. The Veteran's PTSD is rated under the General Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under these criteria, a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). 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. A 100 percent rating is assigned for 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. 1. An initial rating in excess of 10 percent for PTSD prior to May 28, 2013 Turning to the evidence, VA treatment records, the November 2010 VA examination report, and the Veteran's lay statements show that the Veteran's PTSD was manifested primarily by mild symptoms during the period from January 19, 2010 through May 27, 2013. For example, during a November 2010 VA examination, he stated he had retired from the maintenance field two years earlier due to physical illness and generally did not want to be around others to avoid provoking conflict. He also described being socially withdrawn. Following a review of the claims file and mental status examination, the examiner summarized that the Veteran's psychiatric symptoms caused mild impairment in occupational and social functioning. A May 2011 treatment summary from a Vet Center indicated the Veteran had initiated contact in September 2008, completed an intake interview, and began group therapy. The adjustment counselor reported that the Veteran was consistent in his participation and had attended "numerous group sessions thus far." The Veteran's reported symptoms included intrusive recollections about events during his service in Vietnam, sleep impairment or insomnia with distressing dreams occurring three to five times per week, avoidance symptoms such as avoiding crowds and decreased interest in most social activities, persistent irritability, difficulty concentrating, and hypervigilance. VA treatment records during the period from January 19, 2010 through May 27, 2013 reflect the Veteran's reports during regular psychiatry visits of having intermittent nightmares occurring up to once per week, irritability or feeling short-tempered at times, occasional decreased energy and depression, one flashback in July 2011, and a generally good mood. He reported attending weekly PTSD meetings at a Vet Center and described those meetings as beneficial or helpful. Mental status examination findings documented occasional restricted affect. The records also indicate he was compliant with his medications for depressive symptoms and sleep impairment. For the period from January 19, 2010 through May 27, 2013, the severity, frequency, and duration of the Veteran's PTSD symptoms, including those symptoms unlisted in the rating criteria such as flashbacks, more closely approximate the symptoms contemplated by a 10 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 30 percent rating. See 38 C.F.R. § 4.126. Here, the evidence shows his PTSD symptoms were controlled by continuous medication for depressive symptoms and by medication taken as needed for sleep impairment; the November 2010 VA examiner characterized the Veteran's psychiatric symptoms as mild; and records of regular visits with VA psychiatrists reflect mild, intermittent symptoms that generally improved over time. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 10 percent rating. The November 2010 VA examiner summarized that the Veteran's psychiatric disorder caused mild impairment in employment and social functioning due to his social withdrawal and desire to avoid conflict with others. Mental status examinations in VA treatment records and the November 2010 VA examination report indicate that the Veteran was well-dressed and well-groomed with normal appearance; calm and cooperative; sensorium was clear and behavior was within normal limits; communication was intact and speech was normal; some fidgeting was present; eye contact was well-maintained; mood and affect were normal; thought processes were linear and goal-directed; thought content was unremarkable with no suicidal or homicidal ideation, intent, or plan; no evidence of psychosis; memory, insight, and judgment were adequate; and cognitive function was grossly normal. While the Veteran did experience sleep impairment, a symptom contemplated by a 30 percent rating, the evidence overall does not demonstrate the level of impairment associated with a 30 percent rating. The VA treatment records show the Veteran was prescribed Trazodone to take daily at bedtime for sleep impairment. However, the records reflect his consistent reports during regular VA psychiatry visits that he was taking Trazodone only as needed, which was approximately once per week or three to four times per month. Moreover, the medical and lay evidence of record does not reflect that the Veteran's sleep impairment affected his occupational functioning. In summary, prior to May 27, 2013, the Veteran's PTSD more nearly approximated the criteria for a 10 percent rating. A higher, 30 percent rating is not warranted. 2. An initial rating in excess of 30 percent for PTSD from May 28, 2013 through October 13, 2015 On May 28, 2013, the Veteran was afforded a VA examination to evaluate whether he had psychiatric symptoms that met the diagnostic criteria for PTSD. He reported experiencing "intense anger including hitting others with both suicidal and homicidal ideas and no current intent." He indicated he last worked in 2006 doing maintenance for a local housing authority for 9 years and he had previously worked in manufacturing for 14 years. He stated that in "both jobs he displayed anger and was fired once." He added that his anger pervades his marriage and his wife had threatened to leave him. He disclosed a history of family tragedy involving the loss of a child at birth and the loss of his son by suicide. Among a checklist of symptoms that applied to the Veteran's diagnosis of PTSD, the examiner identified the following: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; flattened affect; impaired abstract thinking; 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 suicidal and homicidal ideation without intent. The examiner concluded that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. In August 2014, the Veteran presented for a PTSD VA examination in connection with his July 2014 claim for a TDIU. He described experiencing irritability, adding that his wife "would consider me difficult to get along with;" dreaming about his military experience approximately once per week; sleeping five to six hours per night with initial awakening after three hours; isolating from others and avoiding crowds; feeling depressed "sometimes;" and having feelings of guilt and restlessness. He denied having homicidal or suicidal thoughts, identifying his good relationship with his family as a protective factor. He denied auditory or visual hallucinations. He stated that he enjoyed gardening, he had a good relationship with his family and wife, he had a couple friends and would invite them over for dinner, and he generally felt "hopeful." He related that some of his PTSD symptoms had improved, having learned ways to cope from mental health treatment programs, and he "continued to refuse medications" to manage his symptoms. Among a symptom checklist, the examiner identified the following symptoms that actively applied to the Veteran's current diagnoses of PTSD and major depressive disorder: depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. Reported behavioral observations on mental status examination included the following: alert and cooperative with appropriate grooming and fair eye contact; oriented to person, place, time, and situation; euthymic mood with congruent affect; concrete, focused thought process; cognitive function within normal limits; impaired short-term memory; normal speech; and normal motor movements. The examiner concluded that the Veteran's PTSD reflected moderate impairment and resulted in occupational and social impairment with 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. In addition to the May 2013 and August 2014 VA examinations, VA treatment records during this time period show that the Veteran regularly participated in individual therapy. He reported "sleeping okay," getting five to six hours of sleep per night; he described his wife as supportive; he consistently denied any suicidal or homicidal ideation; he denied experiencing crying spells or hallucinations; he stated that he enjoyed gardening and walking in the woods; and he was not taking any medications for psychiatric symptoms. A February 2015 VA therapy note indicates the Veteran was last seen by a psychiatrist in January 2013 and needed a future appointment. An April 2015 psychiatry note reflects the Veteran's report that he sometimes felt down, but he denied any sustained sadness or anhedonia and had no suicidal thoughts. He endorsed having nightmares and intrusive memories related to Vietnam and survival guilt at times. He reported sleeping fairly well and that he had been "dealing okay with anger and had learned skills to deal with it." On mental status examination, he was casually dressed and fairly groomed; he was alert and fully oriented; his mood was appropriate with congruent affect; speech was normal in rate, volume, and tone; his thought process was coherent and without any flight of ideas or loose associations; there was no suicidal or homicidal ideation and no auditory or visual hallucinations or delusions; and concentration and attention were intact. The Veteran declined any medications because he believed he was already taking too many medications for medical conditions. From May 28, 2013 through October 13, 2015, the medical and lay evidence of record shows that the Veteran's PTSD disability was manifested by symptoms associated with a 30 percent rating (e.g., depressed mood, suspiciousness, weekly panic attacks, anxiety, chronic sleep impairment), and symptoms associated with a 50 percent rating (e.g., flattened affect, disturbances of motivation and mood, impairment in short-term memory, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships). During the May 2013 examination, two symptoms associated with a 70 percent rating were noted, including suicidal ideation and difficulty in adapting to stressful circumstances. In addition, the reported symptom of "intense anger including hitting others" may be suggestive of impaired impulse control (such as unprovoked irritability with periods of violence), which is associated with a 70 percent rating. However, the May 2013 VA examiner indicated the Veteran's current symptoms did not include impaired impulse control. Having considered the medical and lay evidence of record for the period from May 28, 2013 through October 13, 2015, the evidence is at least in equipoise as to whether the severity, frequency, and duration of the Veteran's PTSD symptoms more nearly approximate the symptoms contemplated by a 50 percent rating. Similarly, the evidence is evenly balanced as to whether the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 30 percent or 50 percent rating. On the one hand, the findings of the May 2013 VA examiner generally reflect more severe PTSD symptomatology than contemporaneous VA treatment records and the August 2014 VA examination findings. In addition, the May 2013 examination report was less thorough than the August 2014 examination report in that the former examiner did not include a narrative description of behavioral observations or mental status examination findings. On the other hand, some findings from the May 2013 examination, such as disturbances of motivation and mood, were also evident on the August 2014 examination. In summary, as the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, a 50 percent rating for PTSD is warranted for the period from May 28, 2013 through October 13, 2015. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The issue of whether a rating higher than the 50 percent rating granted herein for PTSD for the period from May 28, 2013 through October 13, 2015 is addressed in the final section below. 3. An initial rating in excess of 50 percent for PTSD from May 28, 2013 through February 12, 2021 In addition to the May 2013 and August 2014 VA examinations, during the period prior to February 13, 2021, the Veteran was afforded a VA examination in October 2015 to evaluate the current severity of his PTSD. He "reported no changes since last exam," adding that he continued to receive mental health treatment through VA. He stated that he "still, every so often [has] nightmares and bad dreams . . . all about the war" and "sometimes I still just get angry too easily." He endorsed symptoms such as exaggerated startle response, sleep problems, restlessness and anhedonia, occasional sadness, and feeling nervous. He denied any suicidal or homicidal thoughts. Mental status examination findings were identical to those reported during the August 2014 VA examination except that the Veteran maintained "good eye contact" during the October 2015 examination. The examiner concluded that the Veteran's PTSD with depressive disorder resulted in occupational and social impairment with reduced reliability and productivity. Ongoing VA treatment records reflect that the Veteran continued to participate in individual therapy for his PTSD. He reported occasional nightmares and intrusive thoughts about Vietnam; he consistently denied suicidal or homicidal ideation and any auditory or visual hallucinations. His mood was generally stable with "good days and bad days." He continued to have chronic sleep impairment. He described deep breathing exercises, working outside every day, and verbalizing positive comments as skills that help him manage his anger and irritability. He reported spending time with family, including grandchildren and great-grandchildren and gardening with his wife of over 40 years and his son. During a July 2019 comprehensive suicide risk evaluation, Veteran reported he had "never had thoughts" of engaging in suicide-related behavior and had never engaged in any preparatory behavior. He continued to deny any current suicidal or homicidal ideation and his suicide risk was determined to be low. For the period from May 28, 2013 through February 12, 2021, the severity, frequency, and duration of the Veteran's PTSD symptoms, including those symptoms unlisted in the rating criteria such as occasional nightmares and intrusive thoughts, more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 50 percent rating. The May 2013 and October 2015 VA examiners each concluded that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity. The Board notes that during the May 2013 VA examination the Veteran endorsed experiencing suicidal and homicidal ideation, which is contemplated by the 70 percent criteria and is similar to persistent danger of hurting self or others, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). He also described experiencing "intense anger with hitting others." However, the severity, frequency, and duration of the Veteran's reported suicidal ideation has not risen to the level contemplated by the 70 percent or 100 percent disability ratings. Notably, the Veteran reported experiencing suicidal ideation once during a period of over 10 years, and he denied having ever had suicidal thoughts during a July 2019 suicide risk evaluation. Also, although he reported intense anger with hitting others during the May 2013 examination, the examination report did not identify when or how frequently he may have hit someone and reflects that he did not have impaired impulse control (such as unprovoked irritability with periods of violence). Moreover, contemporaneous VA treatment records since May 2013 reflect that the Veteran reported having periods of irritability or anger but the records do not document current periods of violence or persistent danger of hurting himself or others at any time during the appeal. Also, although the May 2013 VA examination documented difficulty in adapting to stressful circumstances (including work or a worklike setting), which is a symptom associated with a 70 percent rating, the evidence as a whole suggests the Veteran has been successful in using coping skills, which he learned through PTSD groups at a Vet Center and individual therapy at VA, to deal with stressful circumstances, including managing his anger and irritability. Further, the August 2014 and October 2015 VA examiners did not find the Veteran had difficulty adapting to stressful circumstances after reviewing the records and examining the Veteran. (Continued on the next page) In summary, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's PTSD symptoms resulted in the level of impairment required for a 30 percent rating for the period from January 19, 2010 through May 27, 2013, or for a 70 percent rating for the period from May 28, 2013 through February 12, 2021. As the preponderance of the evidence is against the Veteran's claims for higher ratings than those assigned during each applicable period, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Kirscher Strauss 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.