Citation Nr: 21073980 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 10-00 011A DATE: December 13, 2021 ORDER Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to June 21, 2016 is denied. FINDING OF FACT For the period prior to June 21, 2016, the Veteran's PTSD symptoms were manifest by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 30 percent for post-traumatic stress disorder (PTSD) prior to June 21, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service in the United States Marine Corps from September 1964 to June 1968. In June 2016, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of that hearing is of record. When that VLJ retired from employment with the Board, an October 2021 letter was sent requesting clarification whether the Veteran wanted a new hearing. The letter informed the Veteran that he was entitled to another hearing with a different VLJ or, if he did not respond within thirty days, the Board would assume that he does not want another hearing and proceed accordingly. The Veteran did not respond to the letter and the Board has proceeded with this appeal. The Board remanded the Veteran's claim in June 2017 for additional development. In a July 2018 rating action, the Veteran's service-connected PTSD evaluated at 30 percent was increased to 50 percent effective June 21, 2016, giving rise to staged ratings. As this did not represent the maximum available benefit for this benefit, the claim remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that Veterans are presumed to seek the maximum available benefit for a disability). In a December 2019 decision, the Board denied the claim for an initial evaluation in excess of 30 percent for PTSD prior to June 21, 2016. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Partial Remand (JMPR) in September 2020. The Court vacated the portion of the December 2019 Board decision that denied a rating in excess of 30 percent for PTSD prior to June 21, 2016 and remanded the claim to the Board for action consistent with the terms consistent with the parties to the JMPR. The Veteran opted into the modernized review system (AMA) for the issues of entitlement to an increased rating for PTSD from June 21, 2016, and entitlement to a total disability based upon individual unemployability due to service-connected disabilities (TDIU). Consequently, those issues will be the subject of a separate Board decision. The issue of entitlement to an increased rating for PTSD prior to June 21, 2016 remains in the legacy system and therefore is the subject of the instant decision. Entitlement to an initial rating in excess of 30 percent for post-traumatic stress disorder (PTSD) prior to June 21, 2016 Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require reevaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. 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 18 (Fed. Cir. 2013). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. And, a 100 percent schedular rating is assigned when symptoms such 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 cause total occupational and social impairment. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In the September 2020 Order, the Court remanded the claim to the Board for action consistent with the terms of the JMPR. Specifically, the parties found that the Board erred when it failed to provide an adequate statement of reasons or bases for its decision in failing to discuss relevant evidence when determining that the Veteran's symptoms were not indicative of a social and occupational impairment greater than a 30 percent rating for PTSD prior to June 21, 2016, and in failing to explain why the collective impact of the Veteran's symptoms resulted in a social and occupational impairment consistent with a 30 percent rating rather than a 50 percent rating. Thus, the issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher prior to June 21, 2016. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with a 30 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating for the time period prior to June 21, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. Turning to the evidence of record, the Veteran submitted a January 2003 statement from a "Certified Trauma Specialist, PTSD Expert," who opined that the Veteran suffered from severe PTSD based on several tests that this expert had administered. This expert did not provide any rationale regarding the Veteran's symptoms that would lead him to the conclusion that the Veteran suffered from severe PTSD other than noting his scores on a variety of psychometric tests. He also submitted several statements containing arguments, but no medical evidence. This individual was not, nor has ever been, the Veteran's representative. Ongoing VA and private treatment records throughout the period under consideration reveal diagnoses and treatment for PTSD. The Veteran reported a number of symptoms including anxiety, hyperirritability, nightmares, flashbacks, poor energy, anger, insomnia, relationship issues with his family, and passive suicidal ideation. VA providers consistently reported that the Veteran's speech was relevant, thinking goal directed, logical, and coherent, cognitions intact, and insights and judgments adequate. The Veteran consistently dressed appropriately and evinced good personal hygiene. The Veteran was prescribed medications to control his PTSD symptomsZoloft, Wellbutrin, and Klonopin. During an October 2007 VA psychiatric consultation, the Veteran reported that his symptoms remained "stable" on his current medications and were mild to moderate. He endorsed some memory problems and difficulty concentrating; however, the examiner noted that his memory for recent and remote events was intact. The examiner also noted no evidence of hallucinations, delusions, obsessions, compulsions, or destructive ideations directed at himself or others. The Veteran reported sleeping with a gun next to his bed due to anxiety; he also conveyed that he avoided large crowds of people. Moreover, the Veteran conveyed that he abused alcohol to cope with his symptoms in the past. He had maintained sobriety for two weeks at that time after completing a VA alcohol detoxification program in September 2007. The Veteran reported for a VA examination in September 2008, wherein the examiner indicated a diagnosis of PTSD. The Veteran reported a depressed mood for the past ten days for most of the day. He described his symptoms as mild-to-moderate. The Veteran reported being married to his wife of 26 years and having good relationships with his two daughters from that marriage. Nevertheless, the Veteran denied having other friends outside of this intimate circle. The examiner indicated a history of alcohol dependence, but the Veteran reported sobriety for the past 14 months. The Veteran reported difficulty sleeping and low energy. The examiner noted no hallucinations, panic attacks, homicidal thoughts, episodes of violence, and/or inappropriate behavior. The report includes an indication of obsessive behavior in checking that doors and windows are locked. The Veteran also reported no current suicidal ideation, but passive thoughts in the past without any attempts at such. The examiner found that normal remote, recent, and immediate memory upon psychometric testing. The Veteran reported retirement in 1995, and thus, was not employed at the time of the examination. The examiner indicated that the Veteran exhibited occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). The examiner did indicate that the Veteran presented as was socially withdrawn. At the June 2016 Board hearing, the Veteran testified that he experienced memory loss, worry, anxiety, hypervigilance, and nightmares because of his PTSD. He stated that he had trouble dealing with crowds, going out in public, and that his PTSD affected his relationships with his wife and family. He also articulated that he had occasional passive suicidal thoughts, most recently about a month prior to the hearing. He conveyed that he previously used alcohol to self-medicate but was sober for a year and a half at that time. He reported that he was using his prescribed medication and seeing his VA psychiatrist regularly for treatment. In considering the evidence as a whole, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 50 percent rating. The level of impairment caused by the Veteran's symptoms more closely approximated the level associated with a 30 percent rating. The Board finds that the evidence throughout the period of appeal does not show occupational and social impairment with reduced reliability and productivity due to psychiatric symptoms. While the Veteran faced sleep impairment, irritability, low energy, anxiety, hypervigilance, and anger, the evidence does not show the level of reduced reliability that would warrant a rating higher than 30 percent. While some memory impairment was reported, the evidence does not show that he retained only highly learned material or forgot complete tasks as the criteria for a 50 percent rating use as an example of the type of impairment that would warrant a higher rating. The Board acknowledges the Veteran's social difficulties and that the record reflected passive suicidal ideation at times, as well as binge drinking during the time period on appeal; however, the Board does not find evidence that these thoughts and behaviors resulted in impairment occupationally or socially, beyond that already contemplated by the current 30 percent rating. Moreover, close scrutiny of the evidence of record from the period under consideration fails to disclose with symptoms or symptomatology analogous to those of a higher rating. Vazquez Claudio, 713 F. 3d 112. Further, the only medical examination of record during the appeal period is the September 2008 VA examination, whereby the examiner found the Veteran's disability picture was most consistent with "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." There is no other competent evidence of record to refute these assessments. The Board has considered the Veteran's contention that his PTSD was more severe than that contemplated by a 30 percent rating. The Veteran is competent to report that which he discerns directly. However, upon review of the evidence of the record, the Veteran does not possess expert training to render clinical findings as to severity. 38 C.F.R. § 3.159 (a)(1). See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Consequently, the Board finds this lay evidence does not competent medical evidence. Therefore, after an holistic Bankhead review of the evidence from the time period on appeal in the instant appeal, the Board finds that the collective impact of the Veteran's symptoms resulted in a social and occupational impairment most consistent with a 30 percent rating. The Veteran maintained relationships within his intimate circle, maintained his self-care, and did not engage in dangerous thought or actions to himself or to others. Because Thus the competent evidence of record, as discussed herein, does not show occupational and social impairment with reduced reliability and productivity due to psychiatric symptoms for the period prior to June 21, 2016. As such, the preponderance of the evidence is against the assignment of a higher rating for service-connected PTSD prior to June 21, 2016. As such, there are no doubts to resolve. 38 U.S.C. § 5107(b). B. J. KOMINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Sneeringer, 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.