Citation Nr: 21072820 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 12-02 320 DATE: December 6, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to service connected PTSD, is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's PTSD manifested in occupational and social impairment with reduced reliability and productivity without occupational and social impairment with deficiencies in most areas or total social and occupational impairment. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1975 to June 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Initially, the Veteran requested a hearing before the Board, he later withdrew his request in July 2016. His hearing request, therefore, is deemed withdrawn. 38C.F.R. §20.704(e). The Board remanded these matters twice for additional development before ultimately denying it in January 2020. Subsequently, the Veteran appealed the Board's denial to the United States Court of Appeals for Veterans' Claims (CAVC or Court), which pursuant to a December 2020 Joint Motion for Partial Remand (JMPR), vacated the Board's decision to the extent the Veteran's claims were denied, and remanded the matters for further consideration. In May 2021, pursuant to the JMPR, the Board remanded these matters for additional development, to include obtaining updated VA treatment records and a VA examination to determine the nature and severity of the Veteran's PTSD. Updated VA treatment records have been associated with the record. A VA PTSD examination was conducted in August 2021. Therefore, substantial compliance with the Board's previous remand has been met and the matter is now return for further appellate review. See Stegall v. West, 11 Vet. App. 268, 271 (1998). An August 2021 rating decision granted the Veteran's claim for service connection for residual scars from a left shoulder laceration and assigned an initial rating. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims. 1. Entitlement to an initial rating in excess of 50 percent for PTSD is denied. The Veteran generally contends that his PTSD symptoms are more severe than contemplated by the rating assigned. Specifically, the Veteran's representative argues that his condition noted in a November 2010 treatment record warrants a higher staged rating. See December 2020 JMPR. The Veteran's PTSD is rated under the General Rating Formula for Psychiatric Disabilities (General Formula). 38 C.F.R. § 4.130. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. "A Veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 44243 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, a 50 percent rating is warranted where 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted if the disability is productive of 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); inability to establish and maintain effective relationships. Id. A schedular maximum 100 percent rating is warranted if the disability is productive of 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. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation on the basis of social impairment. The Board notes that with regard to the use of the phrase "such as" in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. A review of the record reveals that the Veteran sought mental health treatment from VA and private treatment providers, as well as treatment for her other health needs. To the extent that the Veteran's treatment records contain information relevant to the severity of her mental health, to include mental health screenings, the Board will summarize this evidence. Turning to the evidence, in a February 2010 mental health treatment note, the examiner diagnosed the Veteran with PTSD. The examiner noted that the Veteran's symptoms caused clinically significant distress or impairment in social and occupational areas. The Veteran reported symptoms of sleep disturbances, irritability, anger, difficulty concentrating, hypervigilance, exaggerated startle response, and being isolative and withdrawn. It was noted that his employment was stable. The Veteran reported being married for 25 years but having marital problems and reported being satisfied with the relationship he has with his children. The examiner noted that the Veteran had positive social support and a sense of responsibility to his family. His suicide risk level was deemed moderate, indicating that he is at an increased risk of suicide but not acutely dangerous to self. In a March 2010 VA examination, the Veteran reported enjoying playing basketball with his 15-year-old son and attending some of his school activities. However, he avoids large groups of people, which limits his involvement. He reported getting along with his wife, but admitted to closing her out, because he has not been able to feel love for a long time. He gets easily irritated and frequently regrets comments made to his wife. He reported distancing himself from her to prevent conflict. Further, the Veteran reported having one close friend that he plays cards or dominoes with about twice a month. The Veteran's symptoms included recurrent and intrusive recollections, difficulty falling or staying asleep, irritability or outburst of anger and exaggerated startle response. The examiner noted that the Veteran is employed full-time with no evidence of significant cognitive impairment or impulsive behaviors that might interfere with his ability to manage his affairs. Further, the Veteran denied any occupational problems. He reported that he worked the night shift and has a great deal of autonomy with little interaction with other employers. In a November 2010, mental health letter, by his social worker, it was noted that the Veteran's PTSD symptoms interfered with occupational and social impairment in those creating deficiencies with work, family relations, and his mood. The Veteran reported experiencing intrusive thoughts, reexperiencing of the events (frequent flashbacks and nightmares), avoidance and hyperarousal symptoms, continued isolation, sleeplessness, and thoughts of suicide without a plan, irritability, depressed affect causing an inability to function appropriately and effectively, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships that prevent the Veteran from working any other work shift than the night shift. In a May 2016 and November 2016 VA treatment record, it was noted that the Veteran's PTSD was stable, and he was not on medication. In a November 2018 VA examination, the Veteran was diagnosed with PTSD in remission. The examiner noted that the Veteran's symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. It was noted the Veteran had no problems with the jobs that he had worked over the past several years and had never been fired from a job. The Veteran reported having symptoms of irritability which negatively impacts his personal relationships, but the symptoms do not negatively impact his effectiveness at work. In a May 2021 VA treatment note, the Veteran denied any concerns with his PTSD symptoms over the last few years. In an August 2021 VA psychological examination, the examiner diagnosed the Veteran with PTSD. The examiner noted occupational and social impairment with reduced reliability and productivity. The Veteran reported that his family is doing well and that he mostly does not socialize with others, but he does go to the Veterans of Foreign Wars and likes talking to other Veterans. The Veteran reported retiring three years prior and regretting it. Explaining that he had an increase in PTSD after he retired and has "too much time to think." The Veteran's symptoms include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, hypervigilance, irritability, poor anger control and exaggerated startle response. The examiner observed that his mood was depressed, and his affect was flat. He also observed that the Veteran was neatly groomed and casually dressed and was cooperative during the evaluation. The Veteran was alert and oriented. His immediate memory was good and abstract thinking and judgment was good. The Veteran's thoughts were clear and logical. There were no signs of delusions or hallucinations and his suicide risk was estimated to be low at the time. Further review of the record shows that the Veteran receives treatment from private treatment providers for various disabilities, to include her PTSD. However, there is no indication from the treatment notes of record that the Veteran has reported mental health symptoms that are worse than those noted above. Based on the foregoing, the Board finds that a rating in excess of 50 percent for PTSD is not warranted at any time during the appeal period, to include during 2010. Inasmuch, the Board finds that such disability was manifested by occupational and social impairment with reduced reliability and productivity without occupational and social impairment with deficiencies in most areas or total occupational and social impairment. In that regard, the Veteran did not display occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Impairment to mood was demonstrated as the Veteran reported depression. Although the Veteran described social strains with his wife and avoiding crowds during the appeal period, he still maintained a relationship with his wife for more than 25 years and had a good relationship with his children. He also engaged with a few friends. The Veteran described irritability and being easily angered, but it was never reported that he became violent or could not control his impulse. In fact, in the March 2010 examination, the Veteran reported distancing himself from his wife to avoid conflict which demonstrates an ability to be restrained and in control of his impulses. In terms of his occupational impairment, although it was noted in November 2010 that he had an inability to establish and maintain effective relationships, which prevented him from working any other work shift than the night shift. In March 2010, the Veteran reported that he has a great deal of autonomy working the night shift, with little interactions and denied any occupational problems. The examiner also noted that the Veteran was employed full-time with no evidence of significant cognitive impairment or impulsive behaviors that might interfere with his ability to manage his affairs. Furthermore, in November 2018 it was noted that his irritability symptoms only negatively impacted his personal relationships, but do not negatively impact his effectiveness at work. In August 2021, the Veteran reports that he regrets retiring because now he has too much time to think, suggesting that his working may have improved his symptoms. Impairment to judgment or thinking was not demonstrated or alleged by the Veteran. Although the Veteran reported suicidal ideations in February 2010, it was deemed moderate, indicating the Veteran was not acutely dangerous to self. In November 2010, he reported suicidal ideation without a plan. The Veteran did not report homicidal ideations, his speech was not illogical, but in fact logical and linear, he reported being hypervigilant and having an exaggerated startle response but did not report that it interfered with his routine activities. He did not report panic attacks. His depressed mood did not affect his ability to function independently as he stated he felt responsible for his family and worked consistently. See February 2010 opinion letter. There were no reports of spatial disorientation and it was reported that the Veteran had good hygiene. School was not attempted during the appeal period. Therefore, a 70 percent rating is not warranted for the appeal period. The Veteran's symptoms also did not display total occupational and social impairment. Total social impairment was not demonstrated because the Veteran maintained a relationship with his wife and children despite strains on his marriage. He reported mild memory loss but did not report memory loss for names of close relatives, his own occupation, or his own name. Furthermore, there were no reports of delusions or hallucinations. He did not have gross impairment in thought processes or communication, and it was not reported that he had a disorientation to time or place. The Veteran was not in persistent danger of hurting himself or others and did not have grossly inappropriate behavior. Therefore, a 100 percent rating is not warranted for the appeal period. In making its determination in this case, the Board acknowledges the Veteran's belief that his PTSD symptoms are more severe than the current rating reflects. While the Board recognizes that the Veteran is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability considering the rating criteria to be more persuasive than the Veteran's reports regarding the severity of his condition. Despite the foregoing, the Board acknowledges the Veteran's assertions that his symptoms and functional impairments warrant a higher rating, especially during 2010. However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a higher rating are not met. The Rating Schedule contemplates such impairment under the ordinary conditions of daily life. 38 C.F.R. § 4.10; see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). This argument is therefore without merit. The Board notes that the Veteran's representative argued in the December 2021 Informal Hearing Presentation that the December 2018 VA examination was inadequate because the VA examiner, a psychiatrist, was not properly board certified as required by VA policy. However, VA policy indicates that mental health providers who are deemed qualified to perform mental health claims for increased evaluations of service connected mental disorders include board-certified or board-eligible psychiatrists. Even if the December 2018 VA examiner is not currently board-certified, there is no indication that she does not have the proper license or that she is not eligible to be board-certified. This argument is therefore without merit. The Board has considered whether a staged rating under Hart, supra is appropriate; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning staged ratings is not warranted. The Veteran nor his representative have not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Additionally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability (TDIU) has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran reported that he had retired from construction in approximately 2019 in an August 2021 VA examination. However, the Veteran has not alleged, and the record does not establish, that he is unable to obtain and maintain employment due to his PTSD. As such, the Board finds that a claim for a TDIU is not raised in connection with the instant appeal. See Rice v. Shinseki, supra. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 50 percent for PTSD, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND Entitlement to service connection for hypertension, to include as secondary to service connected PTSD, is remanded. The Veteran contends that his hypertension stems from his service. See December 2019 Informal Hearing Presentation. In a December 2019 Informal Hearing Presentation, the Veteran's representative indicated that he is not claiming that his hypertension is secondary to his PTSD but that his hypertension had its onset in June 1993 while serving on board the U.S.S. John F. Kennedy. However, in a December 2021 Informal Hearing Presentation, the Veteran's representative again raised the issue of secondary service connection. The Board notes that the Veteran's representative argued that the Veteran's hypertension was the result of his diabetes; however, the Veteran has not awarded service connection for diabetes. In the December 2021 Information Hearing Presentation, the Veteran's representative now argues that the Veteran's hypertension is the result of obesity related to this PTSD. A remand to obtain an addendum opinion addressing this contention is required. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records. schedule the Veteran for new VA examinations to determine the nature and etiology of the Veteran's claimed hypertension. The electronic claims folder and a copy of this remand in its entirety must be provided to the examiner in conjunction with the examination. The examiner is requested to review all pertinent records associated with the claims file, and the examiner must indicate on the examination report that such review was undertaken. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The need for further examination is left to the discretion of the examiner. The examiner is asked to furnish an opinion with respect to the following question: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypertension was caused or aggravated by the weight gain/obesity resulting from his service-connected PTSD? If the examiner finds that the Veteran's hypertension is a result of weight gain/obesity, he or she should address whether it at least as likely as not (i.e., a 50 percent or greater probability) that (1) the Veteran's service-connected PTSD caused him to become obese and, if so, (2) whether such resulting obesity was a substantial factor in causing or aggravating his hypertension, and (3) whether his hypertension would not have occurred or worsened but for the obesity caused by his service-connected PTSD. The examiner must specifically address the medical literature and internet articles cited by the Veteran's representative in the December 2021 Informal Hearing Presentation. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.