Citation Nr: 21005766 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-40 330 DATE: February 2, 2021 ORDER Entitlement to an initial rating for posttraumatic stress disorder (PTSD) in excess of 10 percent prior to July 27, 2019 is denied. Entitlement to a rating for PTSD in excess of 30 percent beginning July 27, 2019 is denied. REMANDED Entitlement to an initial rating for right lower extremity peripheral neuropathy in excess of 20 percent is remanded. Entitlement to an initial rating for left lower extremity peripheral neuropathy in excess of 20 percent is remanded. FINDINGS OF FACT 1. Prior to July 27, 2019, the Veteran’s PTSD was manifested by symptoms productive of no worse than occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 2. Beginning July 27, 2019, the Veteran’s PTSD was manifested by symptoms productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; occupational and social impairment with reduced reliability and productivity or worse is not shown at any time. CONCLUSION OF LAW 1. The criteria for entitlement to an initial rating for PTSD in excess of 10 percent prior to July 27, 2019 have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a rating for PTSD in excess of 30 percent beginning July 27, 2019 have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1963 to April 1968. This appeal to the Board of Veterans’ Appeals (Board) is from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified during a video conference hearing in October 2017. A transcript of that hearing is of record. In September 2018, the Board remanded the case. In June 2020, the Board sent the Veteran a letter informing him that the Veterans Law Judge who conducted the hearing was no longer employed at the Board and offered him the opportunity to have another hearing. See June 2020 BVA Letter. The Veteran did not respond within the prescribed period of time, so the Board assumes he has waived his right to another hearing. Prior to adjudicating the appeal, the Veteran’s representative was given an opportunity to submit an Informal Hearing Presentation. In January 2021 the Veteran’s representative was notified that because no response was received the Board would move forward with the deciding the appeal. 1.-2. Entitlement to initial ratings for PTSD in excess of 10 percent prior to July 27, 2019 and in excess of 30 percent beginning July 27, 2019. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran contends that his PTSD should be assigned a higher rating. Prior to July 27, 2019, the Veteran’s PTSD is rated as 10 percent disabling and beginning July 27, 2019 a 30 percent rating is assigned under 38 C.F.R. § 4.130, Diagnostic Code 9411. PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the general formula, a 10 percent rating is assigned when the psychiatric disorder results in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. Id. A 30 percent rating is assigned for 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, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss. Id. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for 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. Id. A 100 percent rating is assigned for 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. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation but are not meant to be exhaustive. Id. The Board finds that the current ratings are appropriate. On July 2014 VA examination, the clinician indicated that the Veteran’s PTSD was productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examination shows that the Veteran met the criteria for PTSD based on factors such as hypervigilance, exaggerated startle response, persistent and exaggerated negative beliefs or expectations, and a persistent negative emotional state. Regarding symptoms endorsed due to the diagnosis, the clinician offered no response and stated that while the Veteran reported subjective mental health symptoms, those symptoms did not rise to the level of chronicity required for rating in the symptoms section. The mental status examination noted that the Veteran’s speech was spontaneous with some over productivity. He appeared slightly anxious and reported that he did not like “getting old.” His mood and affect were okay, he was fully oriented, short and long term memory were intact, and insight and judgment were adequate. Not much was reported regarding family and social functioning other than that the Veteran had been married for 44 years and that they shared two children and three grandchildren. The clinician found that the frequency of the Veteran’s symptoms had decreased over the years and that his overall functioning was currently not significantly affected. See July 2014 C&P Exam. During a January 2015 hearing with a Decision Review Officer (DRO), the Veteran reported having memory problems due to PTSD, such as forgetting why he went into a room. His wife had to make a written list if she wanted him to do more than three things. A friend, who testified, gave an example of when the Veteran had gotten lost while driving a few months earlier and that he had not been far from home. The Veteran also reported that he did not sleep well, had strange dreams, checked door locks and was sometimes confused. He testified that he preferred to be with his grandchildren rather than other people because they were hard to deal with. There were times when he did not want to get out of bed, and he liked to hide out somewhere once in a while if there was nothing to watch on television. He always looked if he heard a noise. He noted having a friend in California. The Veteran indicated that his symptoms were getting worse and his friend testified that he noticed the Veteran’s anger was getting worse. See January 2015 Hearing Testimony. On March 2015 VA examination, the clinician found no change in the level of impairment produced by the Veteran’s disability since the last VA examination. The Veteran remained married to his wife and was in contact with his children and grandchildren. Socially, he enjoyed being with his grandchildren because they did not cause problems. He did not want to go out and did not do activities with people other than his wife, children, and grandchildren. He had people that he talked to but had no friends. The Veteran had a garage where he liked to work on military vehicles. He continued to meet the criteria for PTSD due to factors such as a markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritable behavior and angry outbursts, and hypervigilance. On mental status examination, the Veteran was dressed and groomed adequately. He was pleasant, open, cooperative, and smiled easily during the interview. His responses to questions were brief and non-elaborative. His attention, concentration, memory, insight and judgment were intact. The Veteran described his mood as “I am very concerned about what is happening in the world, overseas, and in our government . . . I have grandchildren, and get very upset with people cramming this down my throat . . . the media, etc.. and I love my grandchildren, and I worry about them, and I worry about my wife . . . I feel okay, but it bothers me.” The Veteran stated that he has to clear his mind, make sure the doors were locked, and things were in the right place “but I sleep pretty good . . . if you cut the grass and do things like that . . . then you sleep good.” He noted the various groups of people he did not like. As did the previous examiner, this clinician did not provide a response for symptoms associated with the diagnosis. Instead, he stated that the Veteran may have reported subjective mental health symptoms, but those symptoms did not rise to the level of chronicity required for rating on those symptoms and/or were transient or are not objectively identified on the mental status examination. See March 2015 C&P Exam. During the October 2017 video conference hearing, the Veteran testified that some of his symptoms stayed the same, such as his feelings about certain groups of people and his lack of trust. He had a few friends and only liked a small number of people. He reported that he was nervous, did not sleep well, and had memory problems. There were some things he remembered and other things that he did not, which he attributed to being old. He did not like being in crowds, he checked door locks before going to bed, and had bad dreams three times a week. He testified to sometimes being short-tempered, although his friend testified that it happened frequently. The Veteran then said that it happened a lot if someone made him mad. He stated that he would kill anyone who hurt his wife, but later said he would never hurt or kill anyone; he would only hurt people who hurt his family. See October 2017 Hearing Transcript. On July 27, 2019 VA examination, the Veteran reported having had a stroke in 2015 and the clinician noted that certain reported symptoms, such as memory problems and fuzzy thinking, were more likely than not symptoms of stroke residuals rather than PTSD. He indicated that the Veteran’s disability produced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The examination showed that the Veteran remained married to his wife of 49 years and had contact with children, grandchildren, and extended family. He watched television but often found it depressing. He attended church weekly and went out with family but did not go out much with others unless he liked them. He worked up until 2015 and had a stroke in that time period and was unsteady. The Veteran volunteered twice a week picking up parking lot trash at a doctor’s office. He also spent time with the doctor by going to lunch and doing other activities. The Veteran denied getting treatment since the last VA examination and had been prescribed lexapro. He continued to meet the criteria for PTSD due to factors such as nightmares, avoidance, persistent negative emotional state, feelings of detachment or estrangement from others, irritable behavior and angry outbursts, hypervigilance, exaggerated startle, and sleep disturbance. His PTSD symptoms were depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The mental status examination showed that he was dressed appropriately, outspoken, friendly and telling jokes at times. At other times he became irritated, opinionated, and abrasive without any noticeable cause, other than his own talking about things that upset him. He stated that he feels “nervous, anxiety, people bug me and I don’t trust them or want them around me . . . do like little kids . . . feel good when I go to church and when my grandkids are around me.” His judgment and insight were within normal limits and he slept well but just not the whole night. He denied suicidal ideation and when asked how PTSD affected him, he said he did not like Oriental people or people who speak another language. He had a fear of what he called “gooks” coming at night and had a “burm” in the back of the house. He checked locks at night and feared someone would hurt his wife when she was out without him; he stated he would kill anyone who hurt her and that she was the only person he trusted. He only associated with people he liked and was vigilant about people and their behavior. People who do not respect the flag or dress or act inappropriately angered him. The clinician found it difficult to redirect him after he started talking about Vietnam. His wife stated she did not know he had PTSD when she married him and that she put up with his behavior, and at times was scared of him, but this did not happen often. Regarding the impact of PTSD, the clinician noted that the Veteran had a very verbal, blunt, opinionated, and controlling style in interpersonal communication. This style appeared to some degree be fueled by residuals of PTSD. He openly stated that he did not like people, and did not trust people, and was clear to point out the kinds of people he disliked, and the behaviors that he evaluated that generated his opinions about the person. He seemed compelled to then let them know what he thought regardless of the impact on others. This style was as likely as not generated by anxiety related to memories of his Vietnam experiences and, thus, related to PTSD. This style impeded his ability to interact appropriately with people, thereby, affecting his social and occupational interactions. As a result, he may well tend to withdraw from others, and have periods of depression. He appeared to have exaggerated and negative beliefs and expectations about others, and more likely than not himself, as evidenced by his statements about psychiatrists and psychologists not being able to help people with PTSD, which further fueled his opinions and resistance from any treatment for mental health problems. Despite his condition, which appeared to have been ongoing for many years, he was able to maintain years of employment with the same company before retirement. See August 2019 C&P Exam. The overall disability picture of the Veteran’s PTSD prior to July 27, 2019 is one of mild or transient symptoms that would only cause decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. The two VA examiners did not find that the Veteran’s subjective complaints were chronic, frequent, or prevalent enough to consider in assessing the level of disability and noted that the PTSD did not cause any functional impairment. The Board notes he behaved appropriate during the examinations and, other than the Veteran being slightly anxious on the July 2014 VA examinations, nothing unusual or abnormal was observed on either examination. Thus, there is nothing found on the examination that would lead one to believe the Veteran had more than mild symptoms. The Board also finds that there is no indication that the disability was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks to warrant assigning a 30 percent rating or higher prior to July 27, 2019. During the October 2017 video conference hearing, his representative suggested the examinations were inadequate by noting the similarity of the 2014 and 2015 VA examinations indicated that they may not be very thorough and the examiners did not list any symptoms even though a number of symptoms were discussed during the DRO hearing. While the July 2014 VA examination offered less information than the March 2015 examiner and neither examiner noted any symptoms, both examiners provided probative information for rating the disability and adequately explained why the Veteran’s subjective complaints were not included in the symptoms section. Furthermore, when considered with the other evidence of record, the Board finds that their assessments of mild or transient symptoms are consistent with the record. Although less detailed than the VA examinations, private treatment records from April 2014 to May 2019 show that he was regularly asked about his mental health status during medical appointments and the vast majority of records show he denied having a labile mood, depression, anxiety, hallucinations, and delusions, and the examinations noted his judgment, insight, memory, affect, mood, attention span, and concentration were stable. The few positive responses regarding symptoms included a November 2017 record that shows he thought he was having chest pain due to stress, a May 2018 record in which he reported having anxiety, a September 2018 record that shows he admitted to having depression, a December 2018 record that shows he admitted to having a labile mood and stress, and a February 2019 record that shows he reported having anxiety. See July 2019 Medical Treatment Records – Non-Government Facility. None of these records, however, indicate the severity or frequency of these symptoms, but there is no indication that these symptoms generated any concern from the clinicians. The Veteran and his friend reported having memory problems, but there are many treatment records that show he denied memory problems, and no problems were found on evaluations. The VA examinations found no memory problems and even though mild memory loss is contemplated in the criteria for a 30 percent rating, his overall disability picture is not severe enough to assign the higher rating. His infrequent complaints of depression, anxiety, anger, and labile mood are not shown to at least as likely as not occur with a severity, frequency, or duration to commensurate with a higher rating. The Veteran also reported not wanting to get out of bed at times, having strange dreams and some sleep difficulties, checking door locks, not liking crowds or certain groups of people, and sometimes wanting to retreat when there was nothing to watch on television, but the Board also does not find these would cause the level of occupational or social impairment to assign a higher rating. At the time of the July 2017 VA examination, the Veteran had retired from his job and had done some types of handyman work. During the January 2015 VA examination, he reported he managed rental properties that he owned. Given the type of work he engaged in, there is no indication that his symptoms would cause an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks. His social functioning was not significantly impaired because despite his dislike for crowds and certain types of people, he attended church, had a few friends, good relationships with family members, and went out at times with a friend. The Board notes that while the July 2019 examiner listed several symptoms that the Veteran previously reported there is no indication that these symptoms had the necessary frequency, severity, or duration prior to July 27, 2019 to assign a higher rating. Furthermore, it does not negate the judgment of the previous examiners who found that the Veteran’s subjective symptoms at the time did not have the required chronicity and/or were transient or not objectively identified on the mental status examination. The inclusion of these subjective symptoms in July 2019, therefore, appear to represent a worsening of the disability such that the symptoms were more pronounced to warrant inclusion in rating the Veteran’s disability and assigning a 30 percent rating effective the date of the examination. A rating of 50 percent or greater in not assigned beginning July 27, 2019 because the disability picture does not more nearly approximate occupational and social impairment productive of reduced reliability and productivity. The criteria for a higher rating suggest more ongoing, sustained symptoms that would impair the Veteran occupationally and socially with a degree of regularity not shown in the record. The examiner indicated that the Veteran’ s disability would cause periods of depression and his style of communication interfered with his ability to interact with people in social or occupational settings, but the evidence does not suggest the interference would be so persistent that it would reduce his reliability or productivity; at most, it would occasionally decrease in work efficiency and intermittent periods of inability to perform occupational tasks. This is supported by evidence that the Veteran maintains good family relationships and has friends. Even though he reported not liking crowds or many types of people, he regularly attended church and only certain types of behavior trigger his anger. The examination indicated that problems with his mood or behavior were also triggered by reminders of his Vietnam experience and there is no evidence that this occurs on such a regular basis that it would produce reduced reliability or productivity in a work environment. For the reasons stated, the Board finds that a preponderance of the evidence is against initial higher ratings for his PTSD. The Board has also considered the possibility of additional staged ratings but finds the evidence does not warrant it. Since the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to an initial rating for right lower extremity peripheral neuropathy in excess of 20 percent is remanded. 2. Entitlement to an initial rating for left lower extremity peripheral neuropathy in excess of 20 percent is remanded. The Veteran’s bilateral lower extremity peripheral neuropathy is rated based on the level of sciatic nerve impairment under 38 C.F.R. § 4.124a, Diagnostic Code 8520. The most recent VA examination, which is in July 2019, also shows the disabilities also include bilateral impairment of the external popliteal/common peroneal nerve, which is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8521. Both nerve groups involved the foot and while under 38 C.F.R. § 4.14 prohibits separate ratings for disabilities with overlapping symptoms, there is nothing in the regulations under 38 C.F.R. § 4.124a that prohibits separate ratings. Therefore, prior to rating the Veteran’s bilateral lower extremity peripheral neuropathy, an opinion is needed to determine if the manifestations and symptoms of the sciatic nerve impairment may be distinguished from the externa popliteal nerve impairment. The matters are REMANDED for the following action: Make the Veteran’s claims file available for review to the VA physician who examined him in July 2019. If the physician is not available or if another examination is deemed necessary, then appropriate steps should be taken have the record reviewed or schedule an examination. a. Based on the record, to include an examination if needed, the clinician must opine whether the symptoms and manifestations of the bilateral lower extremity peripheral neuropathy sciatic nerve impairment are at least as likely as not (50 percent probability or greater) distinguishable from the external popliteal nerve impairment. b. If so, the clinician must distinguish the manifestations of the two nerve groups. c. If they cannot be distinguished, then the clinician should explain why. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Bredehorst 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.