Citation Nr: 21073492 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-41 023 DATE: December 8, 2021 ORDER Entitlement to a rating in excess of 30 percent, prior to April 10, 2018, for post-traumatic stress disorder (PTSD) is denied. REMAND Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder is remanded. FINDING OF FACT Prior to April 10, 2018, PTSD manifested as 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 conversation normal), due to such symptoms of anxiety, frequent visualizing deceased men in combat upon waking at night, hypnogenic hallucinations, intrusive memories, irritability, negative effect and intermittent difficulty concentrating and forgetfulness, as well as two months of suicidal ideation. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for PTSD, before April 10, 2018, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty as a storekeeper in the United States Navy from January 1966 to November 1969 with service ashore in the Republic of Vietnam as well as service aboard a cruiser. He was awarded the Combat Action Ribbon. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an August 2014rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge at a December 2019 hearing, and a transcript of this hearing is of record. The Board denied the Veteran's claim for an increased rating regarding PTSD in March 2020. The United States Court of Appeals for Veterans Claims (CAVC) issued a Joint Motion for Partial Remand. The claim is now before the Board. Increased Rating The Veteran submitted a claim for service connection for PTSD in January 2014. The Veteran was granted service connection in August 2014 and assigned a 30 percent rating, with an effective date of January 22, 2014. The Veteran's rating for PTSD was increased to 50 percent in October 2018, with an effective date of April 10, 2018. PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Pursuant to that General Rating Formula, a 30 percent evaluation is warranted for 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). The next higher evaluation of a 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A rating of 70 percent 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. Id. A 100 percent evaluation 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 own name. Id. When adjudicating psychiatric claims, the Board has an obligation under Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) to conduct a three-part "holistic" analysis. The first step of the analysis is to assess the "severity, frequency, and duration of the signs and symptoms" of the Veteran's condition. The second step is to quantify "the level of occupational and social impairment caused by those signs and symptoms." The third step is to assign an "evaluation that most closely approximates that level of occupational and social impairment." As the United States Court of Appeals for the Federal Circuit has held, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the 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. See 38 C.F.R. § 4.126(a). Entitlement to a rating in excess of 30 percent for PTSD prior to April 10, 2018 In March 2020 the Board issued a decision that has been remanded by the Court. In the concurrent Joint Motion for Remand, the parties pointed to two errors on the part of the Board. First, incomplete consideration of 7 symptoms of anxiety, visualizing deceased men in combat, hypnogenic hallucinations, intrusive memories, irritability, negative affect, and intermittent difficulty concentrating and forgetfulness. The second error was an insufficient discussion of the Veteran's inconsistent lay statements regarding suicidal ideation. The parties found that the Veteran's symptoms included: "anxiety, frequent visualizing deceased men in combat, hypnogenic hallucinations, intrusive memories, irritability, negative effect and intermittent difficulty concentrating and forgetfulness." These symptoms do not meet the following criteria of a 50 percent rating: "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 abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships." The Board recognizes that the Veteran has reported irritability, which could potentially be characterized as impaired judgment. Likewise, the Veteran has reported frequent visualization of deceased men in combat and hypnogenic hallucinations, both of which "only occur at night when he wakes from a dream....he has never encountered them during the day or when fully awake." See March 2018 CAPRI, p. 18. Therefore, these symptoms characterized as visualizations and hallucinations are similar to nightmares and did not impair his activities during the day. The question is whether the totality of the Veteran's symptoms most accurately depicts a 30 percent rating criteria or higher. Furthermore, the record is inconsistent regarding suicidal ideation. The Veteran denied suicidal ideation in October 2015, August 2016 and December 2016. See October 2017 CAPRI, pp. 12, 14, 18, 39. Then, in September 2017, the Veteran reported suicidal ideation for the past 2 months without plan or intent. See March 2018 CAPRI, p. 36. The Veteran then denied suicidal ideation in October 2017 and January 2018, with the Veteran stating that he did not have current thoughts about suicide, nor did he feel hopeless or helpless. Id at 14, 29. As such, the record shows that before April 2018, the Veteran reported suicidal ideation for a period of 2 months, after which he reported an end to such thoughts. In Bankhead, citing from various sources, the Court first looked at how the term "suicidal ideation" is defined. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). The Court summed it up stating that "both passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death." Id. at 20. In applying the meaning of suicidal ideation to the rating criteria, the Court noted that suicidal ideation is only listed as a symptom in the criteria for a 70 percent disability rating. Id. There are no analogues at the lower evaluation levels and there are no descriptors, modifiers or indicators as to suicidal ideation in the 70 percent criteria (including no specific mention of "active" suicidal ideation, "passive" suicidal ideation, suicidal "intent," suicidal "plan," suicidal "preparatory behavior," hospitalization, or past suicide attempts). Id. Thus, the Court found "the language of the regulation indicates that the presence of suicidal ideation, alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Id. (emphasis added). The Court then turned to the specifics of the case in Bankhead. The Court found that, insofar as the Board required evidence of more than thought or thoughts to establish the symptom of suicidal ideation, it erred. Id. at 20. The Court found that the Board erroneously grafted the risk of self-harm onto the symptom of suicidal ideation in the criteria for a 70 percent evaluation. In other words, a Veteran need not be at a risk, whether a high or low risk, of self-harm to establish the criteria of suicidal ideation. Id. at 20-21. The Court also found that the Board erred in applying "hospitalization" as the standard for assessing the severity of that symptom. Id. at 21. Rather, the evaluation of mental disorders requires consideration of the effects of each of the Veteran's mental symptoms on his or her social and occupational situation to determine the severity of the symptom. Id. (emphasis added) Put differently, although suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas, it does not follow that suicidal ideation automatically warrants a 70 percent disability rating. The focus is on whether those suicidal ideations are of the severity and frequency to cause occupational and social impairment with deficiencies in most areas. The Veteran began treatment for PTSD in May 2014. The Veteran reported that "for last year and half has been having dreams about [Vietnam], waking frequently at night, experiencing middle insomnia. He mentioned that he tends to jump at loud noises and also sits with back to wall facing door in public places like restaurants. His memories of [Vietnam] are surfacing. He has started writing them in his journal to cope and will be overwhelmed with emotion after a few pages. Gets down at times. No [suicidal ideation] though in years past did have morbid thoughts. Last time was over 20 years ago." See August 2014 CAPRI, p.7 The Veteran was subsequently provided a VA examination in August 2014. The VA examiner performed an in-person examination, reviewed the Veteran's records, and took his statements into consideration. The examiner diagnosed the Veteran with PTSD and found that the Veteran suffered from "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 making this determination, the examiner noted that the Veteran indicated disturbing dreams 2-3 times per week, which led to him walking around the house feeling disoriented, as well as hypervigilance. The examiner noted that the Veteran was dressed and groomed appropriately, was calm and coherent, had linear thought process and fair judgement. The Veteran denied hallucinations and reported occasional suicidal ideation. Finally, the Veteran reported working as a chiropractor, and "indicated no major problems in the job except patients not making their payments." See August 2014 C&P Exam. In July 2015, the Veteran reported daytime anxiety related to PTSD but also related to work and personal matters including stress when an employee quit. He reported swimming daily, denied depression and energy, interest, and activity was good. He was able to enjoy a vacation on a cruise. Throughout the rest of the appellate period, the Veteran continued to seek treatment at VA facilities. A review of the record shows that the Veteran continuously experienced symptoms of hypervigilance and nightmares. Indicative of the Veteran's symptoms is a July 2016 Mental Health Outpatient Note, which reads as follows. Veteran is SC for PTSD and review of records reveal first began treatment in 5/2014 approximately 18 months after he began documenting his experiences in Vietnam for his daughter, who was at SMU, who was desiring to write a book about his time spent in Vietnam. He reports middle of the night awakening 5-7 nights with panic feeling from nightmares of Vietnam, recounting feelings of fear and abandonment while there. He reports prior to journaling for daughter he did not experience symptoms. He is reporting symptoms are not as bad as when first began journaling and treatment. He has positive supports with adult children, grandchildren, men's bible study, business owner and is employed full-time as Chiropractor. He expresses desire for a woman to share the rest of his life with. He denies any depressed mood, has interests, hobbies and finds pleasure in activities. He is motivated and appetite and energy are good. He reports benefit with session and verbalizing feelings and knowing he has support if needed. See October 2017 CAPRI, p. 18 In February 2017, an outpatient clinician noted that the Veteran was still working full time. In September 2017, and outpatient clinician noted that the Veteran was oriented x3. He was appropriately dressed in casual attire. He was cooperative and talkative in session. Eye contact was good. Speech was within normal limits for rate, tone and volume. Mood was anxious. Thought processes were linear and goal directed. Insight was good and judgment was intact. No psychosis or delusions were observed. Veteran denied both suicidal and homicidal ideations. Veteran reported intrusive ideations at his last visit but that these thoughts have not been occurring recently Veteran reflected that they may have related to writing a book about Vietnam and the experience of intense physical pain. The clinician noted that the Veteran's current thoughts were future oriented. He stated, "I have too much to live for!" He is well connected and supported by his family. Current risk appears low. Veteran has a safety plan and is well connected with Silver Team. He feels good rapport with his providers. The question before the Board is thus, given the Veteran's symptoms, to include inconsistent reporting of passive suicidal ideation, did these symptoms cause occupational and social impairment difficulty in establishing and maintaining effective work and social relationships or with deficiencies in most areas? In the present case, the Board finds that the Veteran's symptoms, to include of suicidal ideation over a two month period did not reach such levels and there was insufficient evidence that these thoughts impaired any activities or function. During a December 2019 Board hearing, the Veteran testified that he had several thoughts of suicide "over the years" without reporting the nature and frequency of these occasions other than noted in the clinical records or how these thoughts impaired his function other than problems sleeping. His remaining testimony is relevant to his disability after April 2018. While some of the Veteran's symptoms are indicative of a higher rating, taken together the Board finds that the Veteran's symptoms are best rated at 30 percent. Here, the Veteran reported, as of October 2017, that he was socially active, with his adult children, grandchildren and men's bible study, as well as the desire to resume dating. See October 2017 CAPRI, p. 18. Occupationally, the Veteran was employed throughout the appellate period as a business owner and that he was employed as a chiropractor and was able to treat patients even if occasionally on a reduced tempo. Id, see also March 2018 CAPRI, p. 29. While the Board acknowledges that the Veteran has reported that his PTSD symptoms have impacted "his functioning at work and home" the record does not show that these symptoms caused difficulty establishing and maintaining effective work and social relationships. To the contrary, the record shows that the Veteran was able to maintain effective social relationships and run a business full-time in which he had multiple employees and provided medical care to patients. Id at 41. As such, the Veteran's PTSD during this period of the appeal is best characterized as 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 conversation normal). Therefore, a rating in excess of 30 percent is denied. REASONS AND BASES FOR REMAND Entitlement to a rating in excess of 50 percent for PTSD from April 10, 2018 A remand is warranted due to the Veteran's assertions that his symptoms have worsened over time. The mere passage of time does not render an old examination inadequate. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). Reexaminations are required if the evidence indicates that there has been a material change in a disability or that the current rating is incorrect. See 38 C.F.R. § 3.327. In the present case, the Court has found that the Veteran's medical treatment records and December 2019 testimony before the undersigned VLJ have indicated that his PTSD symptoms have increased in severity. Given that there are no medical treatment records after 2018 upon which to determine the current nature of the Veteran's PTSD, a remand is required. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and private medical treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. The examiner should identify any symptoms and social and occupational impairment due to PTSD alone. (continued next page) Attention is directed to the file of VA outpatient mental health treatment records in addition to examination reports, written statements by the Veteran and hearing testimony in order to determine an overall wholistic picture of the Veteran's social and occupational impairment. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.