Citation Nr: 21076268 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-14 194A DATE: December 22, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) prior to February 21, 2019 is denied. FINDING OF FACT Prior to February 21, 2019, 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. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for service-connected PTSD have not been met prior to February 21, 2019. 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 served honorably on active duty in the United States Marine Corps from February 1964to February 1968 and April 1974 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board remanded this matter for further development. Thereafter, in a November 2020 decision, the Board denied a rating higher than 30 percent for the Veteran's service-connected PTSD prior to February 21, 2019 but granted a 70 percent rating as of that date. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). In August 2021, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated and remanded that portion of the Board's November 2020 decision that denied a rating higher than 30 percent prior to February 21, 2019. Subsequent to certification and transfer of this appeal to the Board, VA developed an additional VA examination and associated updated VA treatment records with the virtual file (which led to an increased, total rating from August 16, 2021). However, the Board does not find that a waiver of this evidence is required as these records are not relevant to the issue addressed in this decision. The additional evidence is not contemporaneous with and does not address the severity of the Veteran's disability during the period prior to February 21, 2019. Entitlement to an initial disability rating in excess of 30 percent for service-connected PTSD prior to February 21, 2019 The Veteran was awarded service connection for PTSD in a May 2017 rating decision and the RO assigned an initial rating of 30 percent with which rating the Veteran disagreed, seeking a higher rating. In November 2020, the Board rendered a decision granting a 70 percent rating as of February 21, 2019 but denying a rating higher than 30 percent prior thereto. In a November 2020 decision, the Board denied the Veteran's claim. On appeal to the Court, the November 2020 Board decision was vacated and remanded only as to the denial of a rating higher than 30 percent prior to February 21, 2019. The Court remarked that the Veteran expressly noted that he was not pursuing the appeal for the period from February 21, 2019. Therefore, the Board will only reconsider that aspect of the Veteran's claim for an increased rating prior to February 21, 2019. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38U.S.C. §1155; 38C.F.R. §4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38C.F.R. §4.3. Whereas here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for different periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. The Veteran's service-connected PTSD is rated under Diagnostic Code 9411, which is part of the General Rating Formula for Mental Disorders found in 38 C.F.R. § 4.130. A 30 percent evaluation is warranted where the disorder is manifested by 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted where the disorder is manifested by 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 for example, 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 evaluation is warranted where the disorder is manifested by 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 that is intermittently illogical, obscure, or irrelevant; near-continuous panic of 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; and an inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where the disorder is manifested by 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. The symptoms listed in the above rating criteria serve as examples of the type and degree of the symptoms effects that would justify a rating and are not meant to be an exhaustive list. Mauerhan v. Principi, 16 Vet. Ap. 436,44244 (2002). Social and occupation impairment must be due to the symptoms listed for that rating level, "or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114 (Fed. Cir. 2013). The Veteran underwent an initial PTSD VA examination in May 2017. The examiner identified symptoms of depressed mood, anxiety, and chronic sleep impairment, as well as the full spectrum of PTSD symptoms. However, the Veteran denied experiencing hallucinations, panic attacks, and suicidal or homicidal ideation. The examiner noted the Veteran was appropriately groomed with good judgment and insight and intact memory. It was also noted that the Veteran volunteered one to two days a week, played basketball once a week, does fishing whenever he can, hunts a little. He reported having a "good" relationship with his spouse, being close to his nieces and nephews and having friends with and without his spouse. The examiner stated that the Veteran has 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 submitted a February 2019 DBQ along with a February 2019 evaluation report from a private psychologist. The grant of a 70 percent rating was based upon this private evaluation. The record also contains VA medical records that include group therapy notes. Though these notes record the Veteran's impairment to be moderate to severe PTSD, no details are provided regarding the Veteran's symptoms or how this assessment was made. The Veteran submitted a letter from his spouse dated in January 2019 (received in March 2019) in which she provided a history of the Veteran's PTSD and stated that his nightmares have increased in intensity. The Board finds that an initial rating higher than 30 percent prior to February 21, 2019 is not warranted. Prior to February 21, 2019, the Veteran's PTSD symptoms manifested primarily as depression, anxiety, and a chronic sleep impairment. The Veteran was still sociable, had friends, volunteered in his community, and played basketball as well as went fishing and hunting. No memory loss was noted during this time and the Veteran did not report experiencing panic attacks. Although the Veteran had nightmares, this is contemplated in the 30 percent rating assigned. Furthermore, although he reported being depressed due to his medical conditions at the May 2017 VA examination, the VA treatment records show negative depression screens in 2017 and 2018. The Veteran started group therapy in October 2017, but the treatment notes do not provide insight into the Veteran's symptoms but merely record his participation. The Veteran did not participate in individual therapy and did not take any medications for his PTSD symptoms. Lastly, in the JMPR, the parties agreed that the Board did not adequately address all the evidence relating to suicidal ideation, specifically the Veteran's report on his January 2017 application that he had "suicidal thoughts due to RVN;" a May 2017 rating decision that deferred a "decision on entitlement to compensation for nightmares, nightsweats, flashbacks, anxiety, depression and suicidal thoughts RVN;" and the Veteran's statement attached to his notice of disagreement that "I have considered suicide on a periodic basis." Initially the Board notes that the May 2017 rating decision is not evidence and the statement therein regarding suicidal thoughts is merely a recitation of the Veteran's January 2017 statement on his application. Moreover, although the Veteran asserted in his application for service connection and in his statement attached with his notice of disagreement that he has had suicidal thoughts, those statements are inconsistent with the medical evidence. Suicide assessments in the Veteran's VA treatment records show that the Veteran consistently denied thoughts of suicide or self-harm and he was considered a low risk for suicide. The only exception is a single suicide assessment in April 2017 that indicated he was at medium risk for suicide. However, less than a month later at the May 2017 VA examination, the Veteran again denied having suicidal ideation and did not report having a history of suicidal thoughts, plans or intent. Furthermore, on a review of suicidal factors, the examiner stated that the Veteran denied thoughts of suicide or self-harm and did not express feelings of hopelessness or helplessness. Moreover, the Veteran reported that his current stressors were his physical conditions, which were bring him down, not his PTSD symptoms. It is not until the February 2019 private evaluation and thereafter that the medical evidence shows that the Veteran reported having suicidal thoughts. In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court held 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" correlating with a 70 percent evaluation under the rating criteria. Id. at 20 (emphasis added). The key word in the quote above is "may," which is merely suggestive. Thus, the Court declined to hold that the presence of suicidal ideations automatically entitles a veteran to a 70 percent evaluation under the rating criteria in every situation. In Bankhead the Court explained that: Ideation is defined as "the formation of a mental concept, image or thought." Dorland's Illustrated Medical Dictionary 912 (32 ed. 2012). The Centers for Disease Control and Prevention defines "suicidal ideation" as "thinking about, considering, or planning suicide." https://www.cdc.gov/violenceprevention/suicide/definitions.html. VA defines "suicidal ideation" as "[t]houghts of engaging in suicide-related behavior," with "[v]arious degrees of frequency, intensity, and duration." Dep't Of Veterans Affairs & Dep't Of Defense, VA/DOD Clinical Practice Guideline For Assessment And Management Of Patients At Risk For Suicide 13 (June 2013) [hereinafter VA/DOD Clinical Practice Guideline]. Similarly, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, describes suicidal ideation as involving a "range... from a passive wish not to awaken in the morning or a belief that others would be better off if the individual were dead, to transient but recurrent thoughts of committing suicide, to a specific plan." Diagnostic and Statistical Manual Of Mental Disorders 164 (5th ed. 2013). Bankhead v. Shulkin, 29 Vet. App. at 19-20. Furthermore, the Board finds the Veteran's statements (or denials as they may be) regarding having thoughts of suicide or self-harm as seen in the medical records to be more probative than those submitted to VA in support of his claim for compensation. Because the medical records were generated with a view towards ascertaining the Veteran's then-contemporaneous state of mental health, they are similar to both statements of medical diagnosis and treatment and official records. Both types of evidence in this matter, and in general in the law, are accorded a high degree of probative value, especially opposed to those generated during the Veteran's current attempt to secure service-connected compensation. See, e.g., Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also Flynn v. Brown, 6 Vet. App. 500, 503 (1994). Finally, the May 2017 VA examiner opined that the Veteran's PTSD caused no more than 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, which is consistent with the 30 percent rating criteria. This finding is consistent with the Veteran's report at the examination that he had a long career in the criminal justice system retiring at the age of 60 in 2006; he was able sustain good relationships with his spouse, family members and friends; and that he maintained activities both of personal interest and in the community. As the Veteran denied having suicidal thoughts, intent or plan at the VA examination, clearly the examiner did not consider such a symptom in determining the Veteran's occupational and social impairment. Therefore, the Board finds that the severity, frequency and duration of the Veteran's reported suicidal thoughts seen in his application and notice of disagreement, when viewed against other evidence of record, to include the VA treatment records showing a consistent denial of suicidal ideation, are not such that the Veteran's overall disability picture is more nearly approximated by the criterion for a higher rating prior to February 21, 2019. The Board notes that, in the JMPR, the parties agreed that the Board should address whether there is anything in the February 2019 private evaluation that makes it factually ascertainable that there was an increase in symptoms prior to that examination. Unfortunately, the Board does not find that there is. The report primarily discusses the present status of the Veteran's symptoms and any historical references are very vague without time references. Thus, although there may be an indication of symptoms being present prior to the examination, there is no way the Board can determine when the Veteran's symptoms presented or worsened to the point that it was factually ascertainable that the Veteran's disability picture is more consistent with a higher rating criteria. As such, the Board finds that the February 2019 private evaluation is the first evidence of record upon which it can be factually ascertained that an increase in the Veteran's PTSD rating is warranted. Moreover, the Board acknowledges that the spouse's January 2019 statement indicates there had been an increase in the frequency and severity of the Veteran's nightmares for a few years prior to 2019, but the Board does not find that statement alone to support a finding that the severity of the Veteran's PTSD symptoms as a whole had worsened such that a higher rating was met prior to February 21, 2019. Unfortunately, her statement provides more historical information (prior to 1994) than it does current information regarding the Veteran's PTSD. For the foregoing reasons, the Board finds that the preponderance of the evidence is against finding that a rating higher than 30 percent is warranted for the Veteran's service-connected PTSD prior to February 21, 2019 and, therefore, the Veteran's claim must be denied. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.M. Kreitlow 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.