Citation Nr: 21073396 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 19-33 937 DATE: December 8, 2021 ORDER Entitlement to a disability rating of 70 percent from April 27, 2017 to September 10, 2021 for Posttraumatic Stress Disorder (PTSD) is granted. Entitlement to a disability rating in excess of 70 percent for PTSD is denied. FINDINGS OF FACT 1. From April 27, 2017 to September 10, 2021, PTSD has been manifested by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. 2. PTSD has not been manifested by total occupational and social impairment at any point. CONCLUSIONS OF LAW 1. From April 27, 2017 to September 10, 2021, the criteria for a rating of 70 percent for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1417, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a 100 percent rating for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1417, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to September 1969. Ratings Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). PTSD The Veteran is currently rated at 50 percent disabled for PTSD from April 27, 2017 to September 10, 2021 and 70 percent from September 10, 2021. He seeks a higher rating. The Board notes that any psychiatric disorder is rated under the General Rating Formula for Mental Disorders, and the criteria under this formula shall be considered no matter what diagnostic code is assigned. Here, because the diagnostic code contemplates the Veteran's diagnosis of PTSD and his psychiatric symptoms, the Board concludes that the Veteran is appropriately rated. The General Rating Formula for Mental Disorders provides that mental disorders are to be rated under 38 C.F.R. § 4.130 as follows: 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 warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or name. The such symptoms as language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means for example and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 1. & 2. Ratings for PTSD The Veteran submitted a claim for service connection for PTSD in April 2017, which was subsequently granted effective that same month. A VA examination was undertaken in June 2017. With regards to the PTSD diagnostic criteria, the Veteran had recurrent, involuntary, and intrusive distressing memories of the traumatic event; recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event; avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event; avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event; feelings of detachment or estrangement from others; persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings); hypervigilance; and sleep disturbance. These caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner found that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, depressed mood, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and chronic sleep impairment. The Veteran had been married to his wife for 43 years. He said they generally get along well. The Veteran retired in 2014 after working for 39 years as an accountant. The Veteran is followed in mental health at VA and takes prazosin. The Veteran's submitted a Veteran's Application for Increased Compensation Based on Unemployability in September 2017 noting that since 2009 the Veteran had frequent nightmares and insomnia. This caused a decrease in his quality of work and worsened relationships with co-workers. He attempted to complete 40 years of service with the same company for purposes of full retirement pay and other benefits. However, he reported to his wife that he needed to quit in April 2010 and was forced to retire shortly before reaching 40 years with the company. He reported being unable to hold any job due to insomnia and interpersonal problems, that could not take care of a family's farm. The Veteran's wife submitted a statement along with the September 2017 form. She noted that the Veteran began having issues at work in 2008 and 2009, when he began taking days of from work more frequency as he developed more sleeplessness and nightmares, and this contributed to difficulty at work. These symptoms caused problems with coworkers due to hypersensitivity. He retired suddenly as he was unable to work in 2010. Since then, he was unable to undertake many types of activities. The Veteran's wife stated that the Veteran has seen no improvement in symptoms despite treatment at VA and medications. An October 2017 VA examination report contains a remarks section noting that the Veteran was seen by the examiner for an PTSD examination a few months ago. At that time, he was felt to meet criteria for the diagnosis of PTSD. Today, his treatment notes were reviewed. There is no evidence that there has been a significant change in is functioning since the time of that initial examination. Although the Veteran retired from his job in 2014, there is no evidence that he could not work at some other kind of employment. Therefore, no change in the Veteran's PTSD is noted based on the totality of the record The Veteran's representative in the Appellate Brief submitted August 2020 indicated that the Veteran's PTSD symptoms had worsened. Specifically, the Veteran's representative noted the Veteran's VA treatment records showing a depression screening from August 2019 which showed moderate to moderately severe symptoms. A September 2021 VA examination found symptoms of anxiety, chronic sleep impairment, depressed mood, difficulty in adapting to a worklike setting, difficulty in adapting to stressful circumstances, difficulty in establishing and maintaining effective work and social relationships, disturbances of motivation and mood, flattened affect, impairment of short- and long-term memory, and occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, and suspiciousness. Recent history noted that the Veteran refrains from going many places and denied having many friends even before COVID-19 and going to restaurants and being around crowds are triggers that he avoids if possible. The Veteran denied having any changes in his occupational or educational history since June 2017 VA examination. He has tried to work at other jobs but noted that the significant sleep disturbance specifically due to the nightmares results in poor functioning each day, every day, and has poor sleep ruins his whole next day. He is often nervous and anxious. The Veteran reports an increase in nightmares and completing several sleep studies to address them. He is prescribed clonazepam, trazodone, and prazosin. He takes them all at night before bed. He continues to have nightmares and notes being groggy when waking because of these medications. He also talked about the helicopters that trigger his memories and takes him back to Vietnam. The Veteran's PTSD criteria findings were the same as in the prior examination report. The Veteran's affect was flat. His mood appeared dysphoric. He denied current suicidal or homicidal ideation, intent, or plan. He appeared to be a reliable historian and credible informant, and there were no overt indications of malingering or of symptom over reporting or underreporting. The examiner found that the Veteran's PTSD is likely to impact occupational and employment activities, including sedentary work. There may be severe impairment in understanding and memory (ability to remember locations and work-like procedures, ability to understand and remember very short and simple instructions, ability to understand and remember detailed instructions) and sustained concentration and persistence (ability to carry out very short and simple instructions, ability to carry out detailed instructions, ability to maintain attention and concentration for extended periods, ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, ability to sustain an ordinary routine without special supervision, ability to work in coordination with or proximity to others without being distracted by them, ability to make simple work-related decisions, ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number of and length of rest periods). Additionally, it is likely that social interaction may be moderately impaired (ability to interact appropriately with the general public, ability to ask simple questions or request assistance, ability to accept instructions and respond appropriately to criticism from supervisors, ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes, and ability to maintain socially appropriate behavior and to adhere to basic standards of neatness). VA treatment records generally associated PTSD with declining memory or cognitive problems gradually since 2015. A June 2016 primary care note indicates that the Veteran had nightmares and did not like being in crowds nor loud noises. He cringes when he hears helicopters. He had connections with two grown children and his wife, but no other social connections. Otherwise, most of the relevant PTSD treatment notes are positive PTSD screens. VA treatment notes indicate that on physical examination, the Veteran was alert and oriented. A January 2020 neuropsychology cognitive screening note reported that the Veteran had cognitive dysfunction encompassing phonemic verbal fluency and difficulties accurately completing a clock drawing task. He demonstrated borderline low normal information processing speed on a visuomotor mediated task sensitive to fast responding and alternating attention. In a note that same month the Veteran's wife reported that the Veteran has been having a lot more memory problems lately. The main problems noted include frequent and consistent forgetfulness, word finding problems, misplacing items, and having difficulty with time relationships. He is known to be forgetting names of family members. The current rating is granted the date of the VA examination. Obviously, the Veteran did not become worse the day the examination. Review of the evidence of record shows that the Veteran left his job prior to the filing of the claim for service connection, despite his wish to remain employed, and VA has granted TDIU. The Veteran has alleged that TDIU was warranted primarily due to PTSD. Both his wife and the Veteran alleged the Veteran's retirement was primarily due to symptoms of PTSD, namely nightmares and insomnia causing fatigue so severe he could not successfully function. In essence, there is severe occupational impairment that, based on the lay evidence, was attributed to symptoms of PTSD. Further, although the Veteran had increased symptoms more recently, including depression and memory loss, PTSD caused deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood prior to this. Although the Veteran had some relationships with family members, he otherwise had occupational impairment noted above and social impairment to the extent that he was unable to maintain social relationships outside of his immediate family. This has been true from the time the claim was submitted. Therefore, a 70 percent rating is warranted from the time the Veteran filed the claim. For the 100 percent rating, there is a requirement of symptoms causing total social and occupational impairment. The Veteran maintained a relationship with his wife and kids and was not disorientated to time or place. The Veteran has not had symptoms such as gross impairment in thought processes or communication, delusions, or grossly inappropriate behavior. The Veteran has not reported suicidal ideation or homicidal ideation and has specifically denied such in treatment records and during examinations. Further, the Veteran is not a persistent danger to himself or others. The Board does acknowledge that there were reports of forgetting names of family members, which is listed as a criterion for a 100 percent rating. However, there is a requirement that this causes total social and occupational impairment. There has not been total social and occupational impairment, as already noted above. There were no reports of intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for own occupation or name. No other symptoms of alike severity causing total social and occupational impairment are shown to exist. This supports the conclusion that the Veteran is not 100 percent disabled according to the relevant criteria. In conclusion, the Board finds that a disability rating of 70 percent, but not higher, is warranted for the Veteran's PTSD. The preponderance of the evidence is against a rating in excess of 70 percent. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.