Citation Nr: 21077145 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-27 319 DATE: December 28, 2021 ORDER Entitlement to a 50 percent rating prior to March 28, 2017 for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Prior to March 28, 2017, the Veteran's PTSD is shown to have been manifested by a disability picture reflecting occupational and social impairment with reduced reliability and productivity; the severity, frequency, and duration of his symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW A 50 percent, and no higher, rating for PTSD is warranted prior to March 28, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from October 1989 to March 2004. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2013 a Department of Veterans Affairs (VA) rating decision, which granted an increased, to 30 percent, rating for PTSD, effective July 5, 2012. In March 2019, at a Travel Board hearing was held before the undersigned. In July 2019, the Board remanded the case to the Regional Office (RO) (or agency of original jurisdiction, AOJ) for additional development of the claim. A November 2020 Board decision, in pertinent part, denied a rating in excess of 30 percent for PTSD prior to March 28, 2017, and the Veteran appealed that part of the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC). In an August 2021 Order, the CAVC granted a Joint Motion for Partial Remand (JMPR) of the parties, thereby vacating the Board's November 2020 decision to the extent it denied a higher rating prior to March 28, 2017 and remanding the matter to the Board for action consistent with the JMPR. Entitlement to a rating in excess of 30 percent for PTSD prior to March 28, 2017. The Veteran contends that his psychiatric symptoms manifest in impairment that warrants a rating higher than 30 percent. His representative argued in a November 2021 statement that a 70 percent rating is warranted. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a 50 percent or higher rating. After further review, the Board concludes that the evidence considered in this appeal supports the Veteran's claim to the extent that a 50 percent, and no higher, rating is warranted; that is, his symptoms did not cause the level of impairment required for a 70 percent or higher rating; rather, they more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can practicably be 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999) When evaluating the level of disability of a mental disorder, the rating agency shall consider the extent of social impairment but shall not assign an evaluation based solely social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. Prior to March 28, 2017, the Veteran's PTSD was assigned a 30 percent rating under 38 C.F.R. § 4.130, Code 9411. (A September 2018 Decision Review Officer decision assigned a 70 percent rating for the disability, which was re-characterized as PTSD with major depressive disorder, unspecified, and alcohol use disorder, based on additional diagnoses found on a March 2017 VA examination, effective March 28, 2017.) Ratings are assigned according to the manifestation of particular symptoms, but use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms listed following that phrase are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment from PTSD under 38 C.F.R. § 4.130 is not restricted to the symptoms listed in the rating criteria. Instead, VA must consider all symptoms of the condition that affect occupational and social impairment, including, if applicable, those identified in DSM-5. The criteria under the applicable codes are: A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. The pertinent evidence consists of an August 2012 VA posttraumatic stress disorder (PTSD) examination (Disability Benefits Questionnaire, or DBQ) and VA mental health outpatient treatment records; however, VA examination reports in March 2017 and June 2018 were also informative as to the severity of the PTSD during the period on appeal. The records show that the Veteran's PTSD was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and mild memory loss); with a 50 percent rating (disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships); and with a 70 percent rating (difficulty in adapting to stressful circumstances). He also had symptoms that are not listed with a specific rating, such as nightmares, irritability, startle reaction, and hypervigilance. The Board recognizes that there are inconsistencies within the VA assessments. In the opinion of the August 2012 examiner, the Veteran's disability picture was best summarized as productive occupational and social impairment that approximated the criteria for a 30 percent rating. Yet, treatment records spanning from 2011 through March 2017 appeared to reflect psychiatric symptoms that resulted in a greater level of impairment. The Board observes there are gaps in the evidence prior to March 2017, in regard to certain areas of functioning. For example, the August 2012 VA examination and VA treatment records do not provide a clear picture of the Veteran's social history, including whether he has friends and how he relates to family members. VA examinations in March 2017 and June 2018 furnish some perspective to fill those evidentiary gaps. In any case, while the Veteran's mental disorder reflects most of the criteria listed for a 30 percent rating, it also typifies many of the symptoms for a 50 percent rating. Given such approximation to the criteria for a higher rating (as will be discussed), in addition to the impairment related to his many unlisted symptoms, it is appropriate to assign a 50 percent rating. A recitation of the pertinent facts follows. On August 2012 VA examination, the Veteran complained of sleeping problems, occasional bad dreams, hypervigilance, and irritability (he reported becoming angry and upset for no reason). He stated he tried to avoid people and large gatherings and was very isolative, and that he went shopping only at night when nobody else was there. He reported becoming suspicious, always looking out for problems, and avoiding making friends, and having recurrent recollection of events in Iraq. He reported he was married, had a fair relationship with family members, and had full custody of a teen-aged daughter from a previous marriage. He worked as a physician's assistant and saw a psychiatrist. He stated he drank alcohol sporadically to induce sleep but did not consider alcohol to be a problem. His reported symptoms included anxiety, suspiciousness, and chronic sleep impairment. On mental status examination, he was rather anxious but well-oriented. He denied hallucinations and was not delusional, and denied depression but reported anxiety; he felt extremely anxious and had panic attacks at times. His main problem was sleeping, and he often drank alcohol to induce sleep. He had good judgment and insight. There were no obsessive-compulsive features. He had generally agitated behavior. The examiner opined that the Veteran's PTSD resulted in 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; such impairment was deemed to be moderate. VA outpatient treatment records prior to March 28, 2017 are fairly consistent with the depiction of the Veteran's PTSD on the 2012 examination. Social work notes in August and September 2011 indicate that he presented as anxious. His marriage was "rocky" amidst efforts to mend it. A young daughter was acting out and also causing stress. He reported over three months of sleep deprivation without relief. A November 2011 mental health note indicates that he had tried several medications for his sleep difficulty. Problems with anxiety and sleep disturbance continued in 2012, and medication was prescribed. In October 2012, it was noted Lexapro assisted his sleep and decreased his anxiety symptoms. In January 2013, he was doing better with sleep (after previously having poor sleep and chronic nightmares). He also had startle reactions and hypervigilance. He took an occasional drink at bedtime to help with sleep. On mental status examination in January, March, and June 2013, his mood was euthymic, and insight was fair; he declined any PTSD groups or individual counseling. In 2014, the Veteran called the VA a couple of times, complaining of insomnia and nightmares and reporting that his medications were not effective (dosage was increased in September 2014). In September 2015, he reported being extremely anxious and stressed out by changing job responsibilities. He also reported occasionally drinking to relax and a temporary worsening of nightmares. On mental status examination, he had an anxious mood, no suicidal ideation, and fair insight (otherwise, the findings were generally within normal limits). In February 2016, he reported being anxious and stressed out due to demands from his job. He declined participation in PTSD groups or individual counseling. On mental status examination, he was cooperative with good eye contact. His thought processes were linear, logical, and goal oriented. His speech was fluent, non-pressured, relevant, and coherent. His thought content was absent of suicidal or homicidal ideation, delusions, obsessions, or hallucinations. His mood was euthymic, and affect was appropriate. He was fully oriented. His memory, attention, and concentration were normal. His judgment was good by testing and fair by history, and his insight was fair. In August 2016, he reported that he started feeling much better since he was switched to Celexa. He reported the death of his son in a motor vehicle accident weeks earlier and was grieving. He drank occasionally to relax. He reported no withdrawals and improving nightmares, and denied suicidal ideation or plan. He was active at a gym. A mental status examination disclosed findings consistent with those in February 2016, except that his mood was mildly depressed. On a March 28, 2017 VA examination, the diagnoses were chronic PTSD, adjustment disorder with mixed anxiety and depressed mood, and moderate alcohol use disorder. The Veteran reported that symptoms associated with PTSD included distressing dreams every couple of weeks; becoming very uncomfortable when exposed to things that remind him of combat situations; avoidance of thinking or talking about his combat experiences; avoidance of crowds, fireworks, and objects on the side of the road when driving; detaching himself from other people despite wanting to have friends; persistent inability to experience and express positive emotions; hypervigilance; preferring to stay home by himself but checking places for exits if he went out in public, and always sitting with his back to a wall; exaggerated startle response; and disturbed sleep onset. He reported symptoms of anxiety disorder with depressed mood including feeling sad much of the time; crying more than he used to; pessimism about the future; distal pleasure from things he used to enjoy; disappointment in himself and self-criticism; feeling guilty most of the time; sleeping most of the day if allowed; low energy and restlessness; irritability almost all the time; difficulty concentrating and making decisions; decreased interest in sex, other people and things; and worrying a lot about the next day at work. He reported he drank excessively to help him sleep, though it may interfere with his mood, concentration, and energy. He described his marriage as having been "rocky" but improved now that he was taking Celexa, as he could control his temper more efficiently and went to a gym to work off tension. He still had significant grief over his son's death. He reported biking, hiking, going shopping, and occasionally going out to eat with his wife, if he could sit with his back to a wall. He reported that his job was very stressful with long hours (he noted he was transferred to an "easier" clinic for a while but then ordered to return back because he had done a good job and was well thought of in the first clinic). He preferred not to talk to anyone or be bothered upon getting home after spending all day talking to people. He did not socialize with anyone though he would like to have friends; he was friendly with a man at the gym, and liked basketball, fishing, watching TV, and lifting weights. On mental status examination, he was described as well-groomed and dressed, cooperative, and respectful. He was alert and fully oriented. He was animated and talkative; his speech was somewhat accelerated at points, though not pressured. His speech was normal in volume and fluent. He became visibly uncomfortable when asked to talk about traumatic experiences during service, though he composed himself and was able to give a detailed account. He became tearful when his son's death was mentioned. His mood was stressed and "indifferent," and his affect was consistent. His thought processes were organized, and goal directed. He denied hallucinations and there was no evidence of delusions. His concentration and memory were intact. He reported possibly compulsive behavior of cutting his hair twice a day, and having occasional passive suicidal thoughts but denied any plan to harm himself or homicidal ideation. His reported symptoms included depressed mood; anxiety; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and suicidal ideation. The examiner opined that the Veteran's psychiatric diagnoses result in 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 examiner opined it was not possible to differentiate what portion of the impairment was caused by each mental disorder because of potential overlap in impairment that may be associated with each diagnosis. On a June 2018 VA examination, the Veteran reported suffering from alcoholism, relationship issues, and insomnia. He reported being depressed, anxious, guilty, and dependent on medicine; he stated he was feeling depressed at the loss of his son two years earlier, when his sadness increased. He was separated from his wife since 2016 and leading a very isolated life; he stayed in his home and was withdrawn. He had been working in geriatrics at a VA hospital since October 2017. His reported symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. The examiner opined that the symptoms of PTSD included recurrent recall, hypervigilance, and insomnia; the symptoms of major depressive disorder unspecified were withdrawal, isolation, crying spells, and insomnia; and the symptoms of moderate alcohol use were recurrent use of alcohol despite adverse medical and social consequences. On mental status examination, his appearance and hygiene were appropriate, and he was fully oriented. He was nervous and uncomfortable but cooperative. His thought process was goal-directed, coherent, and relevant. His memory for remote and recent events was good. He denied hallucinations and was not delusional. He reported he often felt sad but had never been suicidal or homicidal. He did not have any obsessive-compulsive features, and had good insight, judgment, and abstract thinking. He reported that his main problems were sleep impairment, recurrent recall, withdrawal, and sadness. The examiner opined that the Veteran's diagnoses resulted in 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 examiner opined that the Veteran's PTSD was responsible for 50 percent of his impairment, major depressive disorder unspecified was responsible for 25 percent, and moderate alcohol use was responsible for 25 percent of his impairment, and further opined that his prognosis was guarded, and his impairment was moderate. In an August 2018 addendum, the VA examiner opined that the Veteran's condition had declined significantly from 2012 when he was first examined. As to the Veteran's unlisted symptoms (nightmares, irritability, startle reaction, and hypervigilance), the Board finds the severity, frequency, and duration of them more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. 38 C.F.R. § 4.126. It does not appear that these symptoms were present on a daily, or even weekly, basis. Except for perhaps nightmares in relation to his sleep problems, they were also not a consistent complaint, which can be interpreted as indicative of symptoms having minimal functional impact or severity. As for sleep problems, the Veteran's concerns appeared to be more in the nature of insomnia (he resorted to drinking alcohol to induce sleep) than nightmares. At any rate, medication decreased the impact of his sleep disturbance, as was noted in August 2016. Further, many of the unlisted symptoms are similar to criteria for a 50 percent (or 30 percent) rating. For example, startle reaction and hypervigilance are similar to suspiciousness and panic attacks; irritability is akin to disturbances of motivation and mood; and nightmares are similar to chronic sleep impairment. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 50 percent rating; he experienced occupational and social impairment with reduced reliability and productivity. He experienced most of the symptoms listed for the criteria for a 30 percent rating, but VA outpatient records and examination reports show that two of those symptoms anxiety and chronic sleep impairment were pervasive and persistent, and clearly had a substantial impact on his functioning. He specifically requested to be evaluated for them for the purpose of obtaining medication. His use of alcohol, in addition to medication, to relax and sleep was often reported. Prior to March 2017, hr did not believe he had a problem with alcohol consumption in this way, and the contemporaneous records (prior to March 2017) do not indicate that it had become a problem that affected his functioning. It was not until the March 2017 examination that the examiner stated the Veteran drank excessively in order to be able to sleep and had an alcohol use disorder, which may in turn interfere with his mood, concentration, and energy. In the Board's judgment, the severity of two of the most troubling symptoms of the Veteran's PTSD during the appeal period is equivalent to the criteria for a 50 percent rating, which is in line with the assessment of the 2012 VA examiner, who determined the Veteran's overall impairment from symptoms was of moderate severity. While the examiner (or any other provider during the appeal period) did not elaborate on or furnish a clear assessment of the social impairment from the Veteran's PTSD, it is noted that he reported on August 2012 examination that he attempted to eschew people/crowds and avoided making friends. He also reported a fair relationship with family members, even though the strength of his marriage subsequently worsened. There were references to feeling stressed pertaining to daughter, and their relationship appears to have suffered at times, but there was no indication of persistent estrangement during the appeal period. His isolative tendency and apparent problems with socialization are consistent with a 50 percent rating, contemplating difficulty in establishing and maintaining effective social relationships. The record presents a somewhat incomplete disability picture regarding social impairment, but in considering the impact of his pervasive anxiety and sleep problems, coupled with the unlisted symptoms, the Board finds that the PTSD approximates impairment productive of reduced reliability and productivity. While the Veteran appeared to experience some symptoms contemplated by a 70 percent rating, namely, difficulty in adapting to stressful circumstances, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran's symptoms were either contemplated by, or more consistent with, a 30 percent or 50 percent rating. Additionally, there was difficulty, and not inability, in establishing and maintaining effective relationships. He maintained a marriage and had stable family relationships until he separated from his wife at some point in 2016; the reasons for the separation and eventual divorce in July 2019, after 12 years, are not divulged in the record, and the extent to which any of the Veteran's PTSD symptom led to the breakdown of the marriage is only speculative. Nonetheless, throughout the appeal period, he maintained effective work relationships. He was employed full-time as a physician's assistant, and there is no evidence that his job performance suffered markedly on account of his PTSD. He was not shown to have missed work or to have been hospitalized for mental health reasons. In fact, it was not until early 2019 (as he testified at his March 2019 Board hearing) that he received the first bad work evaluation of his career because he purportedly was unable to keep up with performance standards due to losing focus and being extremely tired. Moreover, the Veteran's symptoms did not affect his ability to tend to his appearance and hygiene, and he ably performed all activities of daily living. His judgment and thinking were generally good. Except for one indication of a mildly depressed mood in August 2016, his mood on mental status examinations was generally euthymic, if not marked by anxiety. There was difficulty in maintaining relationships, as noted above, but the evidence does not demonstrate he was unable to form effective work and social relationships. In other words, while some of the Veteran's symptoms may have been of a type found in the criteria for a 70 percent rating, the severity, extent, and persistence of such symptoms, as shown by the evidence, did not produce the level of impairment associated with a 70 percent rating. It is also noteworthy that the VA examiner, in an August 2018 addendum to the June 2018 examination report, remarked that the Veteran's condition had declined significantly from 2012, when he was first examined by him. Thus, there was a discernible increase in severity of the Veteran's PTSD between the August 2012 examination and the June 2018 examination, and assignment of a 50 percent, rather than a 70 percent, rating prior to March 28, 2017 is in accord with the examiner's assessment. In conclusion, although the evidence clearly demonstrates that the Veteran has social and occupational impairment attributable to his PTSD, the disability picture prior to March 28, 2017 is not one reflective of deficiencies in most areas. Rather, as articulated above, it is more consistent with the criteria for a 50 percent schedular rating under Code 9411. And to that extent, the appeal is granted. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.