Citation Nr: 21073413 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-15 689 DATE: December 8, 2021 ORDER Entitlement to an increased rating greater than 50 percent prior to September 23, 2021, for posttraumatic stress disorder (PTSD) with secondary depression is denied. Entitlement to an increased rating greater than 70 percent from September 23, 2021, for PTSD with secondary depression is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's PTSD with secondary depression symptoms prior to September 23, 2021, did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. The severity, frequency, and duration of the Veteran's PTSD with secondary depression symptoms from September 23, 2021, do not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent prior to September 23, 2021, for PTSD with secondary depression 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 (DC) 9411. 2. The criteria for a disability rating in excess of 70 percent from September 23, 2021, for PTSD with secondary depression have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the U.S. Army from October 1982 to February 1992 including service in Southwest Asia. These matters come before the Board of Veterans' Appeals (BVA or Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin that granted service connection for PTSD nad assigned a 30 percent rating. In February 2009, the RO granted an initial rating of 50 percent, effective May 2, 2002. A November 2013 Board decision denied entitlement to an initial rating greater than 50 percent for PTSD. A November 2014 Joint Motion for Partial Remand (JMR) specifically indicated that the denial of an increased rating greater than 50 percent for PTSD would not be disturbed, but that there were inferred claims for entitlement to service connection for symptoms of tremor, dizziness, balance problems, and headaches. After the issue was remanded by the Board in April 2015, in an August 2015 rating decision the VA Regional Office (RO) granted entitlement to service connection for somatic symptom disorder (to include tremors, dizziness, balance problems and headaches), effective May 3, 2002. A separate rating or ratings were not assigned, as the RO noted that the somatic symptom disorder was "evaluated along with the already service-connected disability of [PTSD] with secondary depression." The Veteran's representative submitted an August 2015 notice of disagreement (NOD) as to the assigned disability rating and also advocated for separate ratings for tremors, dizziness, balance problems, and headaches. In a March 2016 Statement of the Case (SOC) the RO listed the issue as "Entitlement to an evaluation in excess of 50 percent for [PTSD] with secondary depression and somatic symptom disorder, to include separate evaluations for tremors, dizziness, balance problems and headaches." A subsequent November 2018 Board remand listed the issue on appeal solely as "Entitlement to an increased initial disability rating for somatic symptom disorder (to include tremors, dizziness, balance problems and headaches)" and remanded the issue for further development. A subsequent May 2021 Board remand, however, listed the issue as "Entitlement to a rating in excess of 50 percent for [PTSD] with secondary depression and somatic disorder" and remanded the issue for further development. A subsequent October 2021 rating decision granted an increased rating of 70 percent, effective from September 23, 2021, the date of the ordered VA examination. As the foregoing does not constitute a complete grant of the requested benefits for any period on appeal, the Board will consider the propriety of an increased rating both prior and subsequent to September 23, 2021. In addition, the May 2021 Board remand directed that the Agency of Original Jurisdiction (AOJ) consider the functional impairment caused by symptoms of balance problems, dizziness, headaches, and tremors and the proper separate ratings for these symptoms. Subsequently, the October 2021 rating decision granted entitlement to service connection for tension headaches and vertigo, assigning separate ratings for those disabilities. Moreover, the Veteran has not expressed disagreement with these findings or the failure to find any functional impairment due to any of the other somatic problems. Indeed, in a November 2021 statement, the Veteran's attorney representative discussed only the increased ratings prior and subsequent to September 23, 2021, for the Veteran's service-connected PTSD. Given the clear intent of the Veteran's attorney representative to limit the appeal to the question of increased ratings for the Veteran's PTSD prior and subsequent to September 23, 2021, the Board will consider the October 2021 rating decision to constitute a complete grant of benefits as to the question of the propriety of separate ratings for the Veteran's somatic symptoms and the current decision will focus on the rating criteria for the Veteran's mental health symptoms. Given the final denial of the Veteran's increased initial rating claim for PTSD in the November 5, 2013, Board decision, the Board will consider an increased rating from that date. Increased Rating The Veteran contends that higher ratings prior to September 23, 2021, and from that date are warranted because they do not accurately reflect the severity of his condition. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher prior to September 23, 2021, and whether a 100 percent rating is warranted from September 23, 2021. 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. 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, supra. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, supra. The Veteran worked as a mail handler for the United States Postal Service from June 1993 to March 2016. He ultimately was granted disability retirement by the Office of Personnel Management (OPM). In October 2014, the Veteran stated that his son had recently attempted suicide and the Veteran discussed his plans for adjusting his schedule to maintain much closer contact with his son. In December 2014, the Veteran discussed concerns regarding his children and about his retirement plans. He was fully oriented, had a congruent affect, good eye contact, normal speech, good hygiene, normal thought processes. No suicidal or homicidal ideation, and intact memory and cognition. In April 2015, the Veteran reported stressors that included his job, family issues, and a recent viral illness. He was planning on traveling to Korea later this month to visit his daughter. He was contemplating an early retirement from his job. The Veteran and his wife had discussed divorce and if they divorced, he planned to relocate to Texas. The Veteran was fully oriented, had a "really stressed" mood, congruent affect, good eye contact, normal speech, good hygiene and grooming, normal thought processes, no suicidal or homicidal ideation, and normal memory and cognition. The Veteran underwent a VA examination in July 2015. The Veteran's mental health disabilities 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. The Veteran was married but described considerable marital conflict that was a chronic complaint. He had 3 grown children, the youngest of whom was in college. The Veteran had moved to a condo community a few years previously due to his physical limitations. The Veteran drove 20 minutes every day to his workplace. The Veteran had a high school diploma and a master's degree in management from a non-accredited university. He worked for the United States Postal Service as a mail carrier, but ultimately had to transfer to a position at the Central Office where the physical burden was less intense. He continued to work full time but found the work stressful. He intended to seek disability benefits from the Social Security Administration (SSA) rather than waiting the 3 years until he qualified for standard retirement. The Veteran's mental health symptoms included depressed mood, anxiety, panic attacks weekly or less often, mild memory loss (such as forgetting names, directions, or recent events), difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances (including work or a worklike setting). On examination, the Veteran was fully oriented, with normal speech and thought processes. The Veteran discussed examples of memory problems and appeared to ruminate on his physical and psychiatric problems. The Veteran also reported hypervigilance, exaggerated startle to noise, chronic anxiety that occasionally escalated to panic, non-restful sleep with nightly nightmares, irritability, and social avoidance. A July 2015 letter from the Veteran's treating VA psychiatrist indicated that the Veteran's symptoms included anxiety, depression, frequent panic attacks, sleep problems with nightmares and frequent awakenings, increased startle response, traumatic flashbacks, poor appetite, weight loss, phobias, and social isolation. In April 2016, the Veteran had just retired from his job and was considering doing some volunteer work. Since retiring, the Veteran had experienced more sleep disruptions and nightmares. In June 2016, the Veteran indicated that he was adjusting to retirement and had been busy with home projects and volunteer work. That said, at times he felt bored. In September 2016, the Veteran reported that he had recently retired and had been walking and riding his bicycle more, including every day on his bike except during pain flare-ups. A January 2017 rating decision granted entitlement to a total disability rating based on individual unemployability (TDIU) based on a combination of the Veteran's service-connected PTSD and fibromyalgia impacting his ability to sustain gainful employment. The effective date was March 31, 2016, the Veteran's last day of work as a mail handler. In June 2017, the Veteran reported that he had supportive family and/or friends. In June 2018, the Veteran indicated that he was playing video games with his friends and also had been doing yard work for his home and going to Wal-Mart. The Veteran also reported spending time working out. The Veteran underwent a VA examination in December 2018. The Veteran's mental health symptoms 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. Symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, 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, and difficulty in adapting to stressful circumstances. On examination, the Veteran was dressed appropriately, had normal speech, depressed mood, normal thought processes, fair insight, full orientation, intact memory, and no suicidal or homicidal ideation. In February 2019, the Veteran was working to sell his rental property and had two dogs that he cared for every day. In February 2020 and May 2020, the Veteran was sleeping well at night, had no decrease in occupational and recreational activities, no ideas of guilt, no drop of energy, no impairment of concentration, and no decrease in appetite. In August 2020, the Veteran reported that he only went out of the house when necessary due to the global pandemic. He had been taking care of the house and yard. He was sleeping well, had no decrease in occupational or recreational activities, no ideas of guilt, no drop of energy, no impairment of concentration, and no decrease in appetite. In November 2020, the Veteran reported similar functioning. He also indicated that he was getting along better with his wife. The Veteran was afforded a VA examination on September 23, 2021. The examiner concluded that the Veteran's psychiatric disorders resulted in occupational and social impairment with reduced reliability and productivity. The Veteran denied significant changes in his social life. He continued to tend to isolate, but sometimes socialized with neighbors. The Veteran had been married for 34 years and that the marriage "has its issues" but a lot of the problems involved issues with their children and his wife's job. The Veteran was not working and had retired in 2017. The Veteran reported anxiety, suspiciousness, panic attacks occurring weekly or less often, near continuous panic or depression affecting the ability to function independently, flattened affect, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty to adapting to stressful situations, isolation, irritability, sleep difficulties, nightmares, intrusive thoughts / memories, physiological / psychological reactivity, moodiness, depressed mood, lack of motivation and concentration, avoidance of things that might remind him of stressors, emotional numbness and feeling socially distant, feeling jumpy, and hypervigilance. The Veteran denied suicidal or homicidal thoughts. In a November 2021 statement, the Veteran's representative argued that the September 2021 VA examination report or the October 2021 Supplemental Statement of the Case (SSOC) was inadequate. It is unclear from the statement whether the representative is arguing that the SSOC or examination report was inadequate. That said, the representative argued, "The VA had not mentioned frequency and duration of [the Veteran's] symptoms which must be considered when evaluating his mental health conditions. Furthermore, the VA failed to comply with the Board's remand instructions. The Board, in part, instructed: 'A complete rationale for any opinion rendered is required.' Here, the VA failed to provide a complete rationale for why [the Veteran] is not entitled to a rating in excess of 50% for his mental health conditions." (Emphasis in original.) The Board disagrees. The Board's prior direction to obtain a "complete rationale for any opinion rendered" was directed at the ordered VA examination report, subsequently completed in September 2021. The rationale was requested regarding the following opinion: "Determine any and all physical symptomatology which manifests due to the Veteran's somatic disorder and specifically include consideration of balance problems, dizziness, headaches, and tremors. Explain how and to what extent the Veteran experiences physical manifestations / symptomatology related to his service connected somatic disorder. Be as specific as possible, consistent with DBQs required for any physical disabilities attributed to the Veteran's somatic disorder." A rationale for the foregoing was provided and based on that opinion and rationale service connection was granted for vertigo and tension headaches in an October 2021 rating decision, as discussed above. As to the frequency and duration of the Veteran's mental health symptoms, the September 2021 VA examination report noted that the Veteran's panic attacks occurred weekly or less often. As to the other symptoms, the Veteran will presume the symptoms are consistent and ongoing in nature. As such, the Board does not find the September 2021 VA examination report to be inadequate. 1. Entitlement to an increased rating greater than 50 percent prior to September 23, 2021, for PTSD with secondary depression The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher for any period prior to September 23, 2021. The Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. For the period prior to September 23, 2021, the evidence demonstrates that the Veteran's disability was manifested by symptoms associated with a 50 percent rating (flattened affect and disturbances in motivation and mood), and symptoms associated with a 70 percent rating (difficulty in adapting to stressful circumstances). He also had symptoms of depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, mild memory loss (such as forgetting names, directions or recent events), and difficulty in establishing and maintaining effective work and social relationships. For the entire period prior to September 23, 2021, the Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms 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. As noted, other than the panic attacks the Board will presume that the symptoms are present daily. That said, the overall nature of the symptoms more closely approximates the criteria for a 50 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity. Notably, he was able to work full time until retirement in March 2016. While the Veteran did experience symptoms contemplated by a 70 percent rating difficulty in adapting to stressful circumstances the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. In light of the above, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating prior to September 23, 2021. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. The Veteran did spend a lot of time alone and isolated, but also maintained an overall good relationship with his family and was able to interact with friends and others in social settings. The PTSD certainly could and would impact occupational functioning, but prior to September 23, 2021, the evidence does not indicate that the mental health problems would more closely approximate functioning as contemplated by the 70 percent rating criteria. In summary, the Veteran did not have deficiencies in social or occupational functioning as contemplated for a 70 percent rating or total social and occupational impairment as contemplated for a 100 percent rating for any period prior to September 23, 2021. He did have deficiencies in some areas, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 50 percent rating currently assigned. Furthermore, even resolving any reasonable doubt in the Veteran's favor, the Board finds that he does not meet the requirements for an evaluation greater than the current 50 percent schedular rating. To the extent that the Veteran exhibits any of the criteria for a 70 percent rating, the Board concludes his overall level of disability does not exceed his current 50 percent rating. In determining that a rating in excess of 50 percent is not warranted, the Board has considered the Veteran's complaints regardless of whether they are listed in the rating criteria, but for the reasons discussed above concludes that the Veteran's level of social and occupational impairment does not warrant a rating in excess of the currently assigned 50 percent rating. In summary, for the reasons and bases set forth above, the Board concludes that an increased rating greater than 50 percent is not warranted for any period prior to September 23, 2021. 2. Entitlement to an increased rating greater than 70 percent from September 23, 2021, for PTSD with secondary depression The Board concludes that the Veteran's symptoms do not cause the level of impairment required for a disability rating of 100 percent for any period from September 23, 2021. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. The evidence of record shows that the Veteran's symptoms include anxiety, suspiciousness, panic attacks occurring weekly or less often, near continuous panic or depression affecting the ability to function independently, flattened affect, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty to adapting to stressful situations, isolation, irritability, sleep difficulties, nightmares, intrusive thoughts / memories, physiological / psychological reactivity, moodiness, depressed mood, lack of motivation and concentration, avoidance of things that might remind him of stressors, emotional numbness and feeling socially distant, feeling jumpy, and hypervigilance. Based on the evidence of record, a rating greater than 70 percent is not appropriate for any period from September 23, 2021, because the Veteran does not have total social and occupational impairment. Although the Veteran clearly has a serious disability, the evidence does not show that there is total occupational and social impairment. He does have the above symptoms, but his overall symptomatology more closely approximates deficiencies in most areas, but less than total social and occupational impairment. As to occupational functioning, the Veteran is in receipt of TDIU for the entire period from September 23, 2021, based on a combination of his service-connected PTSD and fibromyalgia. The Veteran reports that the stress of his job with the postal service played some role in his early retirement, but the primary basis for his leaving work was his physical problems. Even presuming total occupational impairment for the purposes of this decision, the Veteran clearly does not have total impairment of social functioning at any time during the appellate process. The Veteran has been married for many decades (with some marital stress and issues), as well as ongoing relationships with his children. While he tends to self-isolate the Veteran remains able to function in society with friends and strangers in social situations. Given these ongoing relationships and evidence of social functioning, the Board does not find the foregoing to represent total social impairment for any period on appeal. Thus, the Veteran does not have both total social and occupational impairment sufficient to warrant a total schedular rating for the period from September 23, 2021. He does have some deficiencies in several areas, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 70 percent rating assigned herein. Again, in determining that a rating in excess of 70 percent is not warranted, the Board has considered the Veteran's complaints regardless of whether they are listed in the rating criteria, but for the reasons discussed above concludes that the Veteran's level of social and occupational impairment does not warrant a rating in excess of the currently assigned 70 percent rating. In summary, for the reasons and bases set forth above, the Board concludes that an increased rating greater than 70 percent is not warranted for any period from September 23, 2021. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.