Citation Nr: 21074515 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 14-09 869 DATE: December 15, 2021 ORDER Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to May 15, 2017, is denied. Entitlement to a rating of 50 percent, but no higher, for PTSD from May 15, 2017, to June 8, 2017, is granted. Entitlement to a rating in excess of 50 percent for PTSD since June 8, 2017, is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity prior to May 15, 2017. 2. Between May 15, 2017 and June 8, 2017, the severity, frequency, and duration of the Veteran's PTSD symptoms most closely approximated occupational and social impairment with reduced reliability and productivity. 3. The severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas since June 8, 2017. CONCLUSIONS OF LAW 1. Prior to May 15, 2017, the criteria for a disability rating in excess of 30 percent for PTSD 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. 2. Between May 15, 2017 and June 8, 2017, the criteria for a disability rating of 50 percent, and no higher, for PTSD were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. Since May 15, 2017, the criteria for a disability rating in excess of 50 percent for PTSD 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from April 1967 to April 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). In an October 2017 supplemental statement of the case, the AOJ increased the Veteran's PTSD rating from 30 percent to 50 percent, effective June 8, 2017. As these assigned evaluations are not the highest evaluations afforded by the diagnostic code, the Veteran's claims remain before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). This matter has a lengthy procedural history and has been remanded by the Court of Appeals for Veterans Claims (Court) three times. Most recently, in August 2021, the Court vacated a November 2020 Board decision and remanded this claim for failure to provide an adequate statement of reasons or bases in its denial of an increased rating for PTSD. Specifically, the Board failed to discuss the Veteran's disability with regard to the next-higher disability rating. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans' Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. The Court found that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Previous Board decisions and Court remands have addressed TDIU as part and parcel of the Veteran's claim for an increased rating of his PTSD. However, in September 2020, the Veteran opted consideration of this claim into the modernized review system, also known as the Appeals Modernization Act (AMA) by submitting a timely VA Form 20-0996, Request for Higher Level Review (HLR) identifying the August 2020 Supplemental Statement of the Case as the decision to be reviewed. In his September 2020 HLR request, the Veteran specifically noted that the TDIU issue was not a new claim for benefits, but was part of the increased rating claim on appeal pursuant to Rice. Accordingly, the TDIU issue is not currently before the Board. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher rating 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. If the evidence for and against a claim is in 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 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A layperson is generally not capable of opining on matters requiring medical knowledge. The Veteran's PTSD is rated under the general rating formula for mental disorders under 38 C.F.R. § 4.130. A 30 percent rating is assigned for occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care and normal conversation) due to symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment and mild memory loss (such as forgetting names, directions or recent events). A 50 percent rating is assigned 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. A 70 percent rating is warranted where there is 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. A 100 percent rating is warranted when there is 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 and place; memory loss for names of close relatives, own occupation or name. The U.S. Court of Appeals for the Federal Circuit has noted the "symptom-driven nature" of the General Rating Formula and that "a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The psychiatric symptoms listed in the above rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, if the evidence shows that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The Veteran's PTSD is currently rated as 30 percent disabled prior to June 8, 2017 and 50 percent disabling thereafter. The Veteran contends that he is entitled to higher ratings for his PTSD because his symptoms are more severe than contemplated by the currently assigned ratings. Specifically, the Veteran's attorney argues that the Veteran's symptoms more closely approximate a schedular rating of at least 70 percent for the entire period on appeal. The evidence of record shows little treatment for PTSD apart from a prescription for an anti-depressant medication beginning sometime in 2015. VA treatment records indicate that dosage of this medication has remained unchanged since the initial prescription in 2015. VA treatment records show that the Veteran repeatedly denied psychiatric symptoms. The Veteran established care at VA in March 2013. At that appointment, the Veteran denied depressive symptoms and a PTSD screening was negative. In March 2014, August 2015 and August 2016, the Veteran denied having little interest or pleasure in doing things or feeling down, depressed or hopeless. In July 2018, the Veteran told his VA doctor that he felt he was managing his PTSD well with an anti-depressant, and had not received additional mental health treatment since a September 2017 VA examination. He denied experiencing nightmares, feelings of numbness or detachment but did report being hypervigilant over the past month. The Veteran told his doctor that he still had "occasional" problems with avoiding crowds and surprises and said that he had some nightmares, but was "not bad all right." Examination showed that the Veteran's mood, affect, judgment and insight were within normal limits. A suicide screening in December 2020 was negative, and examination showed that the Veteran's mood, affect, judgment and insight were within normal limits. There are two VA PTSD examinations of record from September 2014 and September 2017. At the September 2014 examination, the Veteran described intermittent feelings of numbness, intrusive recollections of the traumatic event a few times a month, lack of trust in other people, episodic difficulty concentrating, hypervigilance, difficulty sleeping and irritability. He denied receiving any mental health treatment in the past two years. He reported that he was generally in a good mood but had stopped hunting due to being reminded of Vietnam. He continued to enjoy carpentry around the house, but had few other interests. As for social relationships, the Veteran related that there had been few changes since his 2012 VA examination. He was still living with his fiancée, and described their relationship as "good." He had four or five friends that he saw on a regular basis, and saw his brother, who he described as his best friend, at least once a month and talked to him twice a week. The Veteran had not had contact with his three children since his divorce. The Veteran stated that he stopped working approximately two years prior due to a heart attack. He had considered going back to work at Home Depot part time, but his doctor warned him against the job, saying that the physical exertion required would be too much stress. A mental state examination showed that the Veteran was pleasant and cooperative with good eye contact with no evidence of a thought disorder or psychosis. His thought and speech patterns were within normal limits. The examiner noted that the Veteran's active psychiatric symptoms were anxiety and chronic sleep impairment. The VA examiner characterized his symptoms as "relatively mild" and somewhat improved since the 2012 VA examination. In September 2017, the Veteran told the VA examiner that he was still living with his fiancée, with whom he had been in a relationship for 14 years, and living with for the past seven years. The Veteran described frequent phone contact with a sister living in Virginia and visiting one of his brothers several times a year. He explained that he had not had contact with his adult son in 30 years, and did not have contact with his middle daughter, although he had recently re-established contact with his youngest daughter and was hoping to visit her soon. The Veteran blamed the estrangement on his ex-wife's behavior after their divorce. He recounted the recent unexpected death of his nephew, and said that he was dealing with the loss "OK." The Veteran said that he had stopped working after his heart attack because he preferred to work alone, and after his heart attack he did not feel safe working alone. He described liking to keep his house neat and organized, doing yard work and some home maintenance. The Veteran reported that he had done some snowplowing work over the winter for a friend of his, who he described as having a bad temper. Despite this, the Veteran said that he was able to avoid conflict with the boss, and stuck up for his co-worker who he rode with. The Veteran reported getting along with this coworker. The Veteran recounted that he was taking an anti-depressant at the insistence of his fiancée, who said that it made him less "hostile," although he was skeptical as to whether he needed the medication. He felt that he was less hostile or irritable than his fiancée made him out to be, as he does not swear, but tells people "what's on his mind." The Veteran stated that he had not sought or received mental health treatment, because he did not feel that he needed it, and was not doing too badly. The clinician noted that the Veteran's active PTSD symptoms included anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting. A mental status examination documented that the Veteran was neatly groomed and cooperative with the examination. He had a mildly tense or edgy affect, but was not anxious or depressed and denied a negative mood. Although his cognitive functioning was not formally assessed, the Veteran did not have difficulty recalling details when asked, and he was able to participate in the examination and casual conversation without problem. The Veteran reported that he keeps things very neat and organized at home, and that it takes him extra time to leave the house for an extended period of time because before leaving he checks doors, windows and toilets. However, the clinician noted that the Veteran's reported symptoms did not meet the criteria for obsessive compulsive disorder or other anxiety disorder. In a May 2017 affidavit, the Veteran reported that he was experiencing psychiatric symptoms including severe hypervigilance, impatience with other people, low frustration tolerance and sleep disturbance. He believed that his PTSD symptoms had caused his two divorces. He stated that medication helped improve his mood and have more patience with people, but that he prefers not to interact with anyone. The Veteran reported that prior to leaving work in 2010, he would get anxious and nervous when speaking to his supervisors because he did not like reporting to other people and preferred to be left alone at work. He described being able to sleep only about four hours a night, and not being able to follow a sleep schedule, falling asleep only when he is completely exhausted because he cannot lie down peacefully due to his hypervigilance. The Veteran explained that he felt that his psychiatric symptoms were severe enough that they would prevent him from working. A May 2017 employability assessment from a private vocational consultant concluded that the Veteran's psychiatric symptoms including social isolation, frequent difficulties interacting with supervisors while employed, and daytime fatigue hindering the Veteran's ability to concentrate and complete tasks in a timely manner. The consultant reported that Veteran claimed that he spends his day isolated to avoid contact with others, is "very impatient with people" and takes medication to improve his mood stability, and routinely checks the windows, doors, and alarm systems of his home throughout the day. The consultant concluded that the Veteran's psychiatric symptoms made him unable to work. Entitlement to a rating in excess of 30 percent prior to May 15, 2017 is denied. The Board finds that the Veteran's symptoms prior to May 15, 2017 did not cause did not cause occupational and social impairment with reduced reliability and productivity. The Board recognizes that the Veteran and his fiancée (as reported by the Veteran) have reported symptoms such as irritability, anxiety, nightmares, hypervigilance, chronic sleep disturbances and social isolation. However, the Veteran has consistently declined mental health treatment on the grounds that he did not feel it was necessary, and that his symptoms were not that severe. The 2014 VA examiner characterized the Veteran's psychiatric symptoms as "relatively mild. Additionally, the record does not document recurrent instances of a flattened affect, panic attacks, difficulty in understanding complex commands, difficulty in establishing and maintaining work and social relationships, impairment of short- and long-term memory or impaired abstract thinking. On the contrary, during this time period, the Veteran described carpentry as an enjoyable hobby. Additionally, the Veteran described good social relationships with his family, fiancée and friends, although he did not have contact with his three adult children since divorcing their mother. In addition, he recounted that he had stopped working due to a heart attack, and not due to any of his psychiatric symptoms. He related that he had considered pursuing a part-time position at Home Depot, which would have necessarily involved dealing with the general public and supervisors. He decided not to because his doctor, who he described as a "buddy," felt the physical exertion would be too much stress. Additionally, the evidence indicates that in the winter of 2016, the Veteran was able to get along well with a co-worker who rode with him while he was snowplowing. By his own report, the Veteran was able to get along with the owner of the company, who he described as difficult to get along with, and even "stuck-up" for his coworker when he felt the owner was being unfair. Overall, the evidence does not reflect the frequency, type and severity of symptoms associated with a 50 percent rating, such as difficulty in maintaining and establishing effective work and social relationships, panic attacks, difficulty in understanding complex commands or circumstantial, circumlocutory or stereotyped speech. Medical records show that the Veteran consistently denied significant psychiatric symptoms and was regularly observed with a normal mood, affect, insight and judgment. The September 2014 VA examination noted that he was pleasant and cooperative with good eye contact. The preponderance of evidence is against a finding that prior to May 15, 2017, the Veteran's symptoms approximated those associated with more than a 30 percent rating. The effect of the Veteran's symptoms is most consistent with occupational and social impairment with occasional decreases in work efficiency. Consequently, a rating in excess of 30 percent prior to May 15, 2017 is denied. In addition, a 100 percent rating is not warranted prior to May 15, 2017. There is no evidence of gross impairment of 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, his own occupation, or his own name. The evidence of record simply does not reflect the type and severity of the examples of the symptoms listed in the criteria for a 100 percent rating. Accordingly, the Board finds that a rating of 100 percent for PTSD is not warranted prior to May 15, 2017. Entitlement to a rating of 50 percent and no higher since May 15, 2017 As for the period from May 15, 2017 to June 8, 2017, the Veteran detailed his psychiatric symptoms and the effects they had on his life at that time in an affidavit dated May 15, 2017. Because the record prior to May 15, 2017 contains little evidence of the Veteran's psychiatric symptoms or functioning, the Veteran's affidavit is the first evidence of record indicating more significant psychiatric symptoms and loss of function. Resolving all doubt in favor of the Veteran and as discussed in more detail below, the Board finds that the Veteran's symptoms most closely approximate those associated with a 50 percent disability rating, and no higher, since May 15, 2017. The Board notes the AOJ relied on the date of receipt of private medical evidence, June 8, 2017, as the first date entitlement was shown. Turning to the evidence pertaining to the period since May 15, 2017, the Board notes that the Veteran reported some difficulties in his relationship with his fiancée of 14 years due to his hypervigilance, some social isolation, increased irritability and ongoing chronic sleep disturbances. On the other hand, the record does not document any unprovoked episodes of physical or verbal violence. The Veteran described a blunt communication style when annoyed, but specified that he did not use profanity or put anyone down; the Veteran noted that the one occasion he had yelled at a police officer for running a red light, he did not escalate the situation further. His chronic sleep disturbances could also contribute to irritability, difficulty concentrating and remembering, but the Veteran was able to cogently relate his personal history and was alert and oriented at all his evaluation appointments. The September 2017 VA examination was largely within normal limits, with good eye contact, a cooperative demeanor and neat grooming. The Veteran did have a mildly tense or edgy affect, but denied a negative mood and was not depressed or anxious. The Veteran reported in his May 2017 affidavit that he felt his psychiatric symptoms prevented him from working, i.e., that his symptoms caused total occupational impairment. While the Veteran is competent to report the frequency and severity of his psychiatric symptoms, as well as the effect of these symptoms on his ability to function, the Board finds that the Veteran's repeated statements that he was unable to work due to his heart condition more probative. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran's statements, when considered with the other evidence of record, are most consistent with a 50 percent disability rating since May 2017. Likewise, the conclusions of the private vocational consultant are less persuasive than the other evidence of record, especially the Veteran's statements during clinical evaluations, and clinical assessments of his symptoms. The vocational consultant is not a mental health clinician and did not personally evaluate the Veteran. The facts she relied on to conclude that the Veteran's psychiatric symptoms were severe enough to prevent him from working were cherrypicked from prior VA examinations and lack the context provided by the examiners. Additionally, the consultant relied on several factual assertions that were not present in the record, such as the Veteran's alleged daytime fatigue and the extent of his hypervigilance. The Board finds that since May 15, 2017, the evidence does not reflect the frequency, type and severity of symptoms associated with a 70 percent rating. The Veteran described good social relationships, including with his fiancée. Although he remained estranged from two of his adult children, he reported that he had become closer to his youngest daughter, and hoped to visit her and his grandchildren soon. Although some difficulties were reported, these did not constitute an inability to form or maintain social or work relationships. A November 2017 affidavit from WS, who the Veteran had done some snowplowing for, described the Veteran as a good and honest friend. Although the Veteran was not working, he maintained that his heart condition was the reason he had stopped working in 2010. Although the Veteran describes a strong preference to keep things very neat and organized, and performs extended security checks before leaving the house for extended period of time, these practices did not rise to the level of interfering with routine activities. The Veteran noted that part of his motivation was to keep busy and active. There is no evidence of suicidal ideation, neglect of personal appearance and hygiene, near-continuous panic or depression. In this case, the preponderance of evidence is against a finding that since May 15, 2017, the Veteran's symptoms approximated those associated with more than a 50 percent rating. The effect of the Veteran's symptoms is most consistent with occupational and social impairment with reduced reliability and productivity. Consequently, a rating in excess of 50 percent prior to May 15, 2017 is denied. Finally, a 100 percent rating is not warranted from May 15, 2017. The Board recognizes the vocational consultant's opinion that the Veteran was completely occupationally impaired. Nonetheless, the evidence of record does not reflect the type and severity of symptoms included in the criteria for a 100 percent rating. There is no evidence of gross impairment of thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives, his own occupation, or his own name. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Megan-Brady Viccellio 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.