Citation Nr: 21076681 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-27 519 DATE: December 27, 2021 ORDER Entitlement to a rating in excess of 30 percent prior to August 28, 2019, and a rating in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. Prior to August 28, 2019, the Veteran's PTSD was 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, irritability and anger, chronic sleep impairment, and mild memory loss. 2. As of August 28, 2019, the Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to such symptoms as difficulty in adapting to stressful circumstances, and inability to establish and maintain effective work and social relationships. He has not manifested symptoms which result in total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent prior to August 28, 2019, and a rating in excess of 70 percent thereafter for PTSD have not been met. 38 U.S.C. § 1155, 38 C.F.R. §§ 3.159, 3.321, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1969 to June 1971. In October 2018, the Veteran testified in support of his claims during a hearing held at the Regional Office (RO) before the undersigned Veterans Law Judge of the Board of Veterans Appeals (Board). In November 2018, the claim was remanded for further development, to include obtaining a new VA examination, and was remanded again in October 2020 for further development; specifically, the Board instructed the RO to attempt to obtain records from the Veteran's treatment in 2013 at the "Vet Center" in St. George, Utah, and to document the attempts that were made to obtain those records. The RO attempted to obtain the records but was unsuccessful and has adequately documented the attempts. The RO notified the Veteran that his release form did not contain an address of the Vet Center in St. George and asked the Veteran to inform the RO of the address of the Vet Center or to obtain the records himself if possible. The Veteran did not respond. The Board finds that there has been substantial compliance with the prior remand directive and the matter has now returned to the Board for adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, the Board notes that the lack of records from the St. George Vet Center affects only one year of the period on appeal (2013), and that there are other probative medical records from that year addressing the Veteran's mental health symptoms. During the pendency of the appeal, a June 2020 VA rating decision increased the Veteran's PTSD rating to 30 percent from the previous zero percent, effective January 2, 2013, the date the VA received his reopened claim. This rating was based on evaluation of mental health treatment notes as well as a VA PTSD examination which had been conducted in November 2013. At the same time, the June 2020 rating decision increased the Veteran's PTSD rating to 70 percent effective August 28, 2019, the date of the subsequent review VA PTSD examination, which had been conducted pursuant to the Board's November 2018 remand directive. 1. Entitlement to a rating in excess of 30 percent prior to August 28, 2019, and a rating in excess of 70 percent thereafter for PTSD. The Veteran, through his representative, contends that he is entitled to the increased seventy percent rating for the entire period on appeal, to include prior to the August 2019 VA examination. Further, the Veteran's representative also contends the Veteran is entitled to the maximum benefit under the law, i.e., a 100 percent rating. Legal Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. The percentage ratings 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 283 (1991). Although the Veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA 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. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Ratings are assigned according to the manifestation of particular symptoms and the overall evidence of impairment. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms listed are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (the General Rating Formula for Mental Disorders), which provides for a 30 percent rating when the evidence shows 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). A 50 percent rating is warranted when the evidence shows 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-term 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when the evidence shows occupational and social impairment, which 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the evidence shows 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. Evidence The RO assigned a 70 percent evaluation from August 28, 2019, based on the review PTSD examination conducted on that date, and an evaluation of 30 percent prior to August 28, 2019 (increased from the prior zero percent rating). The Veteran received treatment from the Vet Center in St. George, Utah during a brief portion of the period on appealearly 2013but as noted previously, the RO made unsuccessful efforts to obtain those records. VA medical records from 2013, however, indicate that the Veteran's mental health symptoms reflected symptoms commensurate with a 30 percent evaluation. For example, a January 2013 note from the Boise Vet Center indicated the Veteran undertook significant volunteer work at a hospital, through the Red Cross, Salvation Army, and Elks Lodge. The Veteran stated he has a short temper at times and can say hurtful things to his family. He described living with depression long-term for 30 years, stating "it comes and goes." In February 2013, the Veteran discussed stressors such as lack of health insurance and paying out of pocket for surgeries. The provider noted there was no evidence of suicidal ideation, the Veteran was alert and oriented with linear and cogent thoughts, and it seemed the Veteran "just needed to talk." In May 2013, the Veteran reported he would be moving to Boise, Idaho, and expressed a "general sense of well-being" associated with the move. He denied any suicidal ideation, and the clinician noted he did not appear depressed or anxious. In July 2013, the clinician noted the Veteran ruminated over things he could not change and could not let go of anger over the way he was treated for serving in Vietnam. In November 2013, the Veteran was afforded a review VA PTSD examination. The examiner opined that his symptoms were not causing him any clinically significant distress and no functional impairment. The examiner noted his depressive symptoms caused mild social impairment "as he tends to avoid people when his mood drops a few times a week." The Veteran reported sleep problems and lying awake ruminating about concerns in his life. He reported no problems with memory or concentration. The Veteran reported feeling nervous or anxious almost every day, but the intensity of the anxiety was noted to be mild and transient. He denied suicidal thoughts, but noted occasional intrusive thoughts and memories that made him anxious or irritable. The examiner found the Veteran had good judgment, self-care, and sufficient impulse control. He was noted to be alert, oriented, and cooperative, with logical and coherent thought processes. In September 2014, the Veteran reported starting school and adjusting to new challenges. He reported being a little overwhelmed, "given his taking a new approach to his life with school and his recent jump back into volunteering." The Veteran also reported in September 2014 that his depression was lifting, he was sleeping much better, and was working on a veterans' resource guide and volunteering with the Elks Lodge. He did report difficulty adjusting to the online and social media aspects of classroom discussions, and reported some mild memory problems, noting it took him longer to learn and retain information than some of the other students, but indicated he was managing his studying and schoolwork. In November 2014, the Veteran reported significant community involvements and an extremely busy schedule, including school, multiple volunteer efforts, and paid work in consulting. The Veteran did not seek treatment for another six months. In June 2015, the Veteran returned for a mental health treatment session. It was noted he had taken on a leadership role with the Elks Lodge, but was also trying to assist his wife in recovering from a significant injury as well as recovering from his own recent shoulder and throat surgeries. The clinician noted the Veteran "puts a lot of pressure on himself to do good work as a volunteer" and was feeling in over his head. No suicidal ideations were noted; the Veteran "just needed to talk to help sort things out." The Veteran next returned for mental health treatment in December 2015, nearly six months later. He reported feeling good physically after his surgeries, but noted issues with anger management, stating "he had been short with several people on occasion that consequently damaged or ended their relationship." He expressed regret in alienating others with the ways in which he managed conflict. After this December 2015 visit, the Veteran was not seen again at the Boise Vet Center for mental health treatment for over five years; he reinitiated treatment there in March 2021. Aside from the Boise Vet Center, the Veteran also received mental health treatment and psychiatric medication management through VA medical centers. In August 2014, it was noted that his PTSD was "fairly stable but [he] does have feelings of frustration from time to time." In December 2014, he reported worsening anxiety and life stressors and his sertraline dosage was increased to 150 mg daily. In April 2015, he reported sleeping better and feeling less anxious. In February 2016, his PTSD was noted to be stable on his current treatment regimen; sertraline was continued at 150 mg. In November 2016, nearly a year after his last counseling session at the Boise Vet Center, he reported wanting to reinitiate individual therapy and reported feeling significant anger and road rage. He reported a history of interpersonal problems and difficulty relating well to others. He denied suicidal ideations and was noted to be low risk. A counseling session in November 2016 noted the Veteran was feeling better after the recent election, and discussed how his anxiety about the country and the government related to his own concept of himself. He was noted to be low risk. He returned for individual counseling in January 2017, and reported that things were going well, and he was pleased with the direction the country was going in. He reported that he was working on his anger and frustration. In March 2017, he reported doing well but expressed difficulty with "fitting in" with other people. In May 2017, he reported "a significant decrease in anger," noting that "he finds himself more accepting of issues and controversies." In September 2017, he reported that he was doing well but expressed significant concern and distrust in the government and the media. In November 2017, he reported working on a patent application for an invention. The clinician noted he appeared to be doing better in many respects and the Veteran reported he had maintained distance from things that upset him. He was alert, oriented, and cooperative. In December 2017, he discussed his distrust of the Army and the government. In March 2018, the Veteran reported being restless. He stated it was hard to sit still due to physical pain. He reported that he works on his computer, develops ideas for inventions, designs a house he plans to build, does a crossword puzzle, and exercisesall by lunchtimethen is bored in the afternoon. He was noted to be alert and oriented with no suicidal ideation. In June 2018, the Veteran reported feeling angrier over the last year, and discussed a negative altercation he'd had with another individual in a work setting several months prior. He reflected on his anger and how he had become verbally aggressive. He was amenable to working on his anger response, though he viewed it as justified. He was noted to be alert and oriented, pleasant and cooperative. In July 2018, the provider noted that the Veteran identified often getting angry and wishing that was different, but focused on outside factors causing his anger and feeling he is justified. The provider noted a small shift in the Veteran's recognition of choice in how he responds with anger. At the October 2018 hearing, the Veteran testified he had a bad temper and could get very angry, and he "struggle[d] a lot of times just not to say anything" when he was feeling upset. He denied having missed any work due to PTSD issues or self-medication but reported issues in past employment due to his temper (prior to the period on appeal). He expressed disappointment with how the VA examiner in November 2013 had "steered" the conversation during the examination. He reported taking sertraline and stated that his medication was effective and "makes it a lot easier" to manage his condition. He denied have nightmares or intrusive thoughts. The Veteran testified he had always been totally honest with his treating providers about his condition and symptoms. His wife also testified that he had significant anger issues, but did not indicate the frequency of any anger outbursts or how his anger has impacted his family or his work. She testified that sometimes it was very hard, "but we're there for each other." In January 2019, the Veteran reported being angry about a negative interaction in the community involving someone who had implicitly accused him of taking advantage of taxpayers when he attempted to trade in hearing aids he had received from VA; his provider encouraged him to write a letter expressing his feelings and seek an apology; he ultimately did so and reportedly received an apology. He reported sleep difficulties, noted he had discontinued taking sertraline, and stated he preferred to take as few medications as possible. Another note in late January 2019 reflects the Veteran reported mild depressive symptoms and moderate anxiety symptoms. The clinician assessed that the Veteran showed improved sleep and mood. No suicidal ideation was noted. In February 2019 it was noted the Veteran was keeping busy with projects for the Elks Lodge and he reported feeling productive and less anxious or depressed. No suicidal ideation was noted. He reported that his sleep was not optimal and he wakes up very early and cannot get back to sleep. In March 2019, the Veteran reported wanting his PTSD rating to increase. The clinician noted he was mildly anxious, with judgment and insight intact. His main concern was sleep issues; the clinician noted he would be restarting trazodone medication for sleep. The clinician also noted that the concern over the PTSD rating increase "seemed related to wanting validation." In June 2019, it was noted he had self-discontinued sertraline, but was not on mirtazapine and trazadone and was "feeling this is doing much better." In August 2019, the Veteran was afforded a review PTSD VA examination. The examiner opined the Veteran had 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 reported no longer watching the news on television because it was stressful for him. The Veteran reported being a trustee for Elks Lodge. He also reported that he did consulting work a couple of times per year, working on patents. The Veteran reported engaging in verbal altercations with people he knows a few times per month. He reported experiencing "road rage" and indicated his wife does not let him drive when they go out together. The examiner indicated the Veteran had symptoms of depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. In January 2020, the Veteran reported anxiety symptoms and also indicated he "feels he carries a lot of anger." As always, he was noted to be alert and oriented and denied suicidal ideation. Another January 2020 note reflects that the Veteran reported a "mostly stable mood" but still had episodes of increased anger and irritability, though he denied any functional impairments. The Veteran denied depressive symptoms and reported he kept busy with numerous projects. He reported some sleep difficulties with waking up early and being unable to reinitiate sleep, but indicated he was taking his medications (mirtazapine and trazadone) as prescribed, with no side effects. Analysis After conducting a holistic analysis and review of the Veteran's condition and symptoms from a longitudinal perspective, the Board finds his symptoms more nearly approximate the criteria for a 30 percent rating prior to August 28, 2019, and that an evaluation in excess of 30 percent is not warranted. The Board also finds that the Veteran's symptoms did not more nearly approximate the criteria for a 100 percent evaluation at any point during the period on appeal. Therefore, the Board leaves the RO's award and its effective dates undisturbed. Considering the Veteran's symptoms and overall condition prior to the VA PTSD examination in August 2019, the Board notes that the Veteran's medical records and testimony reflect consistent reports of anger, irritability, and sleep impairment. The Board finds that the impact of these symptoms is commensurate with a 30 percent evaluation, reflecting occupational and social impairment with only an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Feelings of anger and irritability, while not listed in the rating criteria specifically, are similar to the symptoms listed in the 30 percent rating criteria addressing mood, such as depression, anxiety, and suspiciousness. See Mauerhan, 16 Vet. App. 436. Although the VA awarded an evaluation of 70 percent based on the August 2019 VA examination, the only symptom that the examiner marked which corresponds with that rating is "difficulty in adapting to stressful circumstances, including work or a work like setting." The other symptoms and overall occupational and social impairment as noted by the examiner correspond with lower ratings. The Board concludes that the overall evidence prior to the August 2019 examination does not warrant an evaluation in excess of 30 percent. Prior to August 2019, the Veteran's symptoms did not more nearly approximate the criteria for a 50 percent rating. At various times during the period on appeal prior to August 2019, the Veteran reported managing his anger very well and having minimal symptoms. At other times, he relayed stressful incidents and increased feelings of anger. Although he mentioned being involved in some disputes and negative interactions with others, these appeared to be discrete incidents occurring at most a few times a month, rather than pervasive issues reflective of difficulty in establishing or maintaining effective work and social relationships. His anger issues did not result in violence. He clearly has significant feelings of anger at times, but the evidence does not reflect frequent anger outbursts or indicate that his anger has impacted him to such a severe extent as to result in occupational and social impairment with reduced reliability and productivity. He has engaged in individual therapy which has helped him to recognize and more productively address his anger symptoms. He denied ever missing work due to any symptoms. Although he reported feeling road rage, there is no indication he ever confronted any other motorists or engaged in dangerous behaviors. Despite the August 2019 VA examiner's notation of panic attacks, the medical records do not indicate that the Veteran has reported panic attacks at all, much less panic attacks more than once a week. The Veteran is highly motivated. He has reported mood disturbances and tends to ruminate on politics and things he cannot control, but his reported symptomatology is reflective of only an occasional impact on his occupational and social functioning. He frequently has reported anxiety, distrust and suspiciousness of the government; these symptoms are also commensurate with a 30 percent evaluation. Although the Veteran expressed some difficulty in adjusting to college courses and taking longer to learn and remember the materials studied, his reports are reflective of at most mild memory loss (a criterion of the 30 percent evaluation); there is no indication of significant impairment of short- and long-term memory which could warrant a 50 percent rating. The Board also finds that in contrast to his report of difficulty adjusting to college courses, the Veteran actually seemed to adjust quite well. He reported feeling accepted and enjoying the courses despite a steeper learning curve than the younger students. Although he also reported difficulty in adapting to prior employment, this occurred years prior to the period on appeal, and despite any such difficulty, he was reportedly successful in his employment. The evidence during the appeal period reflects that he has sought out new experiences and opportunities, and, despite occasional interpersonal disputes, has adapted to them rather well. Based on the medical records and the Veteran's own accounts, he was and is a highly motivated, involved, and community-oriented individual. His medical providers have always noted him to be pleasant, cooperative, alert, and oriented. He has not been noted to have difficulty in understanding complex commands, nor impaired judgment or abstract thinking. The Veteran has pursued educational opportunities, volunteer work, and his own hobbies and interests with dedication and vigor. His symptoms are not commensurate with a 50 percent rating and do not reflect occupational and social impairment rising to a level of reduced reliability and productivity. As to the criteria for a 70 percent rating prior to August 2019, the Veteran has never reported suicidal ideation and has never reported panic attacks. He has never reported obsessional rituals interfering with routine activities. His speech has never been noted to be illogical, obscure, or irrelevant; rather, his thought process has always been noted to be linear, logical, and goal-oriented. He has not been noted to have such severe panic or depression that it affects his ability to function independently or effectively. He has not been noted to have spatial disorientation or impaired impulse control such as unprovoked irritability with periods of violence. Although anger and irritability issues have been a consistent theme of his treatment, and have caused some interpersonal problems for him, the incidents described in his records such as the dispute with other volunteers and the incident with the person who accused him of taking advantage of taxpayers were not unprovoked, nor did they rise to a level of significant altercations. Moreover, in response to the latter incident, his provider noted that in writing a letter demanding an apology, the Veteran had taken "appropriate, assertive action" in response, i.e., he had managed his justified feelings of anger and had productively addressed the situation. The Veteran has not been noted to have neglected his personal appearance or hygiene and the evidence does not reflect significant difficulty in adapting to stressful circumstances such as work; rather, the Veteran has consistently sought out new and interesting challenges for himself, personally and professionally, such as enrolling in college and developing patent applications. Therefore, the evidence does not support a 70 percent evaluation prior to the August 2019 VA examination. Finally, the Board does not find that a 100 percent evaluation is warranted at any time during the appeal period, either before the August 2019 VA examination or thereafter. The Veteran does not have total occupational or social impairment. He has been extensively engaged in his community through volunteering and working. He pursues hobbies and interests. He has reported sleep impairment, irritability, and anger, but he maintains effective relationships and manages a great deal of personal and professional responsibility. He has not shown severe memory loss, such as memory loss for names of close relatives, his own occupation, or his own name. The Veteran has never endorsed suicidal ideations and has never been found to be in persistent danger of hurting himself or others. He has not shown any grossly inappropriate behavior. His medical treatment notes have generally noted him to be cooperative, alert, oriented, and communicative. The evidence shows that his irritability and anger have occasionally caused problems in occupational and social functioning, but in no respects rise to the level of total occupational and social impairment. He has not shown persistent delusions or hallucinations and has not been disoriented to time or place. The medical records reflect that the Veteran consistently performs activities of daily living and maintains his personal hygiene. In summary, the overall evidence is not reflective of total occupational and social impairment, and a 100 percent rating cannot be assigned. In summary, the Board will not modify the RO's rating decision or its effective dates. The Board finds the evidence does not support a rating in excess of 30 percent prior to the August 2019 VA examination. The Board further finds that the evidence does not support a rating in excess of 70 percent thereafter. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley, 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.