Citation Nr: 21076949 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-12 469 DATE: December 28, 2021 ORDER Service connection for post-traumatic stress disorder (PTSD) is denied. A rating in excess of 30 percent for dysthymia with major depressive disorder recurrent with seasonal pattern (dysthymia), prior to February 26, 2019, is denied. A rating of 70 percent, but no greater, for dysthymia, is granted, effective February 26, 2019, subject to the laws and regulations governing payment of monetary benefits. FINDINGS OF FACT 1. The Veteran has not been diagnosed with PTSD. 2. For the period on appeal prior to February 26, 2019, the Veteran's dysthymia symptoms most closely align 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 routine behavior, self-care, and conversation normal). For the period on appeal prior to February 26, 2019, the Veteran's treatment records have not shown him to manifest 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; or impaired abstract thinking. 3. As of February 26, 2019, the Veteran's dysthymia symptoms were shown to cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. However, at no time during the appeal, has the Veteran's psychiatric disability caused total occupational and total social impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304(f). 2. The criteria for a rating in excess of 30 percent for dysthymia prior to February 26, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code (DC) 9433. 3. The criteria for a rating of seventy percent, but no greater, for dysthymia from February 26, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, DC 9433. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1968 to June 1970. The matter is on appeal before the Board from a June 2018 rating decision. The issues were previously remanded by the Board in March 2021 for further development. During the pendency of this appeal, a September 2021 rating decision granted an increase for the Veteran's service-connected dysthymia from 30 percent to 70 percent effective August 10, 2021. This decision represents a partial grant of the benefits sought on appeal, pertaining to the issue of an increased rating for dysthymia, as the Veteran was not awarded the maximum benefit provided by the rating schedule, nor was he granted the amount for the entire period on appeal. Thus, the issue remains before the Board. See AB v. Brown, 6 Vet. App. 35, 39 (1993). As was noted in the March 2021 Board remand, the Veteran's previous representative has withdrawn his representation. After a legacy appeal has been certified to the Board, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion. See 38 C.F.R. § 20.6(a)(2),(b). The good cause motion must be in writing and include the name of the appellant, the VA file number, and the reason why withdrawal should be permitted; include a signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the appellant, setting forth the address to which the copy was mailed; and be filed with the Board at the address provided. 38 C.F.R. § 20.6(a)(2). Here, the representative presented good cause and complied with 38 C.F.R. § 20.6, including providing the Veteran with notice of the action. The Veteran did not object to the motion, and has not appointed new counsel. As such, the Veteran is currently unrepresented. 1. Service Connection PTSD Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for posttraumatic stress disorder requires (1) medical evidence diagnosing the condition in accordance with § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) combat status or credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. "Fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others. 38 C.F.R. § 3.304(f)(3). A review of the Veteran's service treatment records (STRs) does not reflect a diagnosis for PTSD, nor do they reflect any complaints or treatments that may be related to PTSD. The Veteran's VA treatment records do reflect diagnoses for mental health disorders, such as the Veteran's service-connected dysthymia, however, they do not reflect that the Veteran has ever been diagnosed with PTSD. The Veteran underwent a VA PTSD examination in August 2021, at which the VA examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD under DSM-5. The examiner opined that the Veteran's claimed condition of PTSD was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided an explanation for the finding that the Veteran did not meet the full criteria for a diagnosis of PTSD. For criteria A: The stressor event reported did meet Criteria A somewhat, and it could be argued that just being in Vietnam at the age of 18, as an Infantryman, with mortars going off, would constitute a traumatic experience. However, the Veteran did not meet Criteria B, as he did not endorse re-experiencing the event. Additionally, Criteria C was not met, as there was no avoidance of stimuli related to the traumatic event. Consideration is given to the Veteran's contention that his claimed disability of PTSD was incurred in or caused by his military service. While lay persons are competent to provide opinions pertaining to certain medical issues, the diagnosis and etiology of PTSD is outside the realm of common knowledge for someone who does not possess medical training, specialized expertise, or experience. Jandreau v. Nicholson, 492. F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, no probative value can be assigned to the Veteran's assertions pertaining to a diagnosis of PTSD. As the Veteran has not been shown to have a diagnosis of PTSD at any time during the pendency of the appeal, service connection for PTSD is not warranted, and the claim is denied. 2. Increased Rating Dysthymia Procedurally, in a May 2012 rating decision, the Veteran was granted service connection for dysthymia with a 30 percent evaluation effective September 29, 2005, the date VA received the Veteran's claim. In March 2018, the Veteran filed a claim requesting an increased rating for his service-connected dysthymia. The Veteran was scheduled for a VA examination in April 2018 to determine the current severity of his service-connected dysthymic disorder. The Veteran showed up for his examination, however, when he was told that the exam would likely last between two and three hours, the Veteran became upset and initially stated that he would withdraw the claim as he did not think that Veterans should be "tortured." The Veteran also voiced concern about how the information would potentially be used against him. The VA psychologist noted that the Veteran did not appear to understand the limits of confidentiality. The VA psychologist attempted to explain the examination protocol and rationale to the Veteran again, and encouraged him to go through with the process, but he refused. He then proceeded to linger around the C&P counter, asking the VA psychologist questions about his background in front of other Veterans. Another psychologist intervened to try and calm the Veteran, and again explained the examination process to the Veteran. The Veteran then stated that he wanted to see a patient advocate, and he was escorted by C&P psychiatric examiners to the patient advocate. The Veteran was again provided with information on the VA examination protocol, along with rationale for why it is structured the way it is. At the time, it was unclear whether the Veteran would continue his claim or not. In May 2018, the Veteran submitted a request to have his examination re-scheduled, and he noted that he would "prefer to see the lady who is the head of the department." In July 2018, he submitted correspondence in which he questioned whether there had been a "glitch" that had prevented his VA examination from being re-scheduled. In a July 2018 rating decision, the Veteran was denied a rating in excess of 30 percent for his service-connected dysthymia. He filed a Notice of Disagreement in August 2018, in which it was noted that the Veteran was seeking a 70 percent evaluation for his dysthymic disorder. The Veteran reported struggling with regulating his emotions and isolation. It was suggested that the Veteran's mental health symptoms substantially contributed to his aversion to the previous C&P exam that he had refused to undergo. His reluctance, or inability to participate in the examination, was purported to be evidence of the severity of his disability. After the issuance of a Statement of the Case (SOC) in February 2020, the Veteran filed a Form 9 Appeal to the Board in April 2020. In March 2021, the Board remanded the issue to provide the Veteran with a VA examination to determine the current severity of his service-connected dysthymia. In a September 2021 rating decision, the Veteran was granted a 70 percent evaluation for his service-connected dysthymia effective August 10, 2021, the date he underwent the VA examination. The Veteran's service-connected dysthymia is rated under DC 9433, which refers to the General Rating Formula for Mental Disorders. The portions pertinent to the evaluation of the Veteran's service-connected dysthymia are provided below. 100 percent: 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. 70 percent: 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. 50 percent: 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. 30 percent: 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). 38 C.F.R. § 4.130, DC 9433. Prior to February 26, 2019 During the period on appeal prior to February 26, 2019, it was not factually ascertainable from a review of the then-extant medical file in this case, that a rating in excess of 30 percent for the Veteran's dysthymia is warranted. Rather, the record appeals to align with the Veteran's 30 percent rating for the period on appeal prior to February 26, 2019. Beginning within the year prior to the period on appeal, the Veteran was seen for a psychiatry medication appointment in October 2017, at which time he reported that he was still living with a female roommate, and that things were not so great. The relationship was reported to be platonic. Pertaining to his roommate, the Veteran stated that "every day is something," and recently, she invaded his personal space and gave away some of his belongings to his siblings. While he noted that he misses a relationship with his siblings, he also indicated that he was frustrated with them for taking his belongings behind his back. Supposedly, his siblings had the Veteran's roommate get old family photos from his closet. Thus, he reported being irritable at times with his roommate and his siblings, and not having a good relationship with his siblings. He denied angry outbursts, destroying property, psychosis, helplessness, hallucinations, and suicidal and homicidal ideations. The Veteran was noted to make direct eye contact and to be cooperative during the appointment. His affect was appropriate and congruent with his mood. His speech was slow, concise, and at a normal tone. His motor activity was within normal limits. His thought process and content were appropriate, logical, and sequential. His reasoning and judgment were fair; however, his insight was limited. His sleep and appetite were good. The Veteran was seen in December 2017 for an individual psychiatry appointment, at which the Veteran reported that "things haven't been too bad lately, really; things have been pretty calm the last month or two; I do get down in the dumps about getting older, which I don't like much. I rehash my life some, although I guess that's normal for most people. I shouldn't use age as an excuse, though." He noted that he had been sent to the appointment because of an argument with his roommate. In addition, the Veteran reported that he enjoys focusing on current events by surfing the net and reading about current events. He noted that he works regularly on a dilapidated house. He denied suicidal and homicidal ideations. The Veteran was seen in February 2018 for a psychiatry medication appointment, at which he was noted to have mild depressive symptoms. The Veteran reported that his female roommate could still be a bother, but that he was content sharing housing space with her as "it helps with the finances." He indicated that he and his siblings were communicating, and that his relationships with his siblings had helped to improve his mood and his outlook on life. He also noted that he enjoyed conversing with friends on the phone. He said he was less sad. He reported that he was not as irritable. He denied psychosis, hallucinations, hopelessness, and suicidal and homicidal ideations. The Veteran was noted to make direct eye contact and to be cooperative during the appointment. His affect was appropriate and congruent with his mood. His speech was slow, concise, and at a normal tone. His motor activity was within normal limits. His thought process and content were appropriate, logical, and sequential. His reasoning and judgment were fair; however, his insight was limited. His sleep and appetite were good. The Veteran was seen in June 2018 for a psychiatry medication appointment, at which he was noted to have mild depressive symptoms. The Veteran reported that he was not sad. He indicated that he stays active helping his friends out, and that he likes to go out for meals. He stated that he perceived his most recent C&P exam to be "contentious," and noted that it upset him. He denied any current anger. He stated, "I'm doing pretty good," and denied any sadness or anxiety. He denied psychosis, hallucinations, hopelessness, and suicidal and homicidal ideations. The Veteran was noted to make direct eye contact and to be cooperative during the appointment. His affect was appropriate and congruent with his mood. His speech was slow, concise, and at a normal tone. His motor activity was within normal limits. His thought process and content were appropriate, logical, and sequential. His reasoning and judgment were fair; however, his insight was limited. His sleep and appetite were good. The Veteran was seen in October 2018 for a psychiatry medication appointment, at which his mood was noted to be stable. The Veteran reported that he was caring for a couple of properties, which keeps his mind active. He said he was not sad. He stays active helping out his friends, and likes to go out for meals. He indicated that he stays in close contact with his family, and that he enjoys their company once a week. He reported that he was not really anxious, and denied any worry. He stated, "I'm doing pretty good," and denied any sadness or anxiety. He denied psychosis, hallucinations, hopelessness, and suicidal and homicidal ideations. The Veteran was noted to make direct eye contact and to be cooperative during the appointment. His affect was appropriate and congruent with his mood. His speech was slow, concise, and at a normal tone. His motor activity was within normal limits. His thought process and content were appropriate, logical, and sequential. His reasoning and judgment were fair; however, his insight was limited. His appetite was good, and his sleep was alright except for hip pain. Based upon the foregoing, a rating in excess of 30 percent for the Veteran's dysthymia for the period on appeal prior to February 26, 2019 is not warranted. The Veteran's treatment records for the period on appeal prior to February 26, 2019, do not show the Veteran to have suffered from 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; or impaired abstract thinking. The record reflects some evidence of disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships; however, the Veteran has not been shown to exhibit these symptoms to an extent to warrant an increase. As to motivation and mood, the treatment records reflect that the Veteran has had mild depressive symptoms, and some anxiety, which are specifically accounted for with a 30 percent rating. Pertaining to difficulty in establishing and maintaining effective work and social relationships, while the Veteran has shown some difficulty with his relationship with his roommate and some of his siblings, he has also shown that he enjoys his relationships with his siblings, that he has been in some form of a relationship with his roommate since 1991, and that he continued to allow his roommate to live with him. In addition, he has noted that he stays active helping out his friends, that he enjoys conversing with his friends, and that he likes going out for meals. While there may be some difficulties with his relationships, they are not shown to be to an extent on their own to warrant a rating in excess of 30 percent prior to February 26, 2019. As such, for the period on appeal prior to February 26, 2019, a rating in excess of 30 percent for dysthymia is denied. From February 26, 2019 As previously noted, the Veteran underwent a VA examination in August 2021. The Veteran reported that he continued to feel numb, with an inability to feel things emotionally. He noted that he has become a very dull person. He is not able to feel happiness. He does not feel sad, but he feels despairing. He keeps a glimmer of hope, but at the same time there are periods of suicidal ideation. The last time was a few months prior, and as a result his medications were increased. His female roommate of 30 years died a year ago. He stated that she was very emotional, and that while he misses her, he is now a lot less stressed. The VA examiner indicated that the Veteran's symptoms manifested as depressed mood, anxiety, suspiciousness, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or a work like setting, and suicidal ideation. The VA examiner found the Veteran's dysthymia to reflect occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. (Continued on the next page) A review of the Veteran's VA treatment records during the period on appeal, reflects occasional reports of suicidal ideation. The first report during the appeal period was on February 26, 2019, when the Veteran explained that during the winter months, especially Christmas through January, he experiences days of sadness, desperation, and wondering why he is here with mild suicidal ideation. However, if he gets out and does something or calls a friend, his mood is improved, and the thoughts go away. He stated that he has no real plan or intent to harm himself, because "too messy," and he does not want to upset anyone. As such, and in conjunction with the findings from the August 2021 VA examination, by granting the Veteran the benefit of the doubt, a 70 percent rating for the Veteran's dysthymia, is warranted as of February 26, 2019, with the first report of mild suicidal ideation during the appeal period. However, at no time during the appeal period has the Veteran's mental condition been shown to warrant a rating in excess of 70 percent for his dysthymia. Nowhere in the Veteran's treatment records has his condition ever been shown to manifest with any symptoms of total occupational and social impairment. As such, a rating of 70 percent, but no greater, for dysthymia is granted effective February 26, 2019. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.