Citation Nr: 21010401 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-36 297 DATE: February 24, 2021 ORDER For the period on appeal prior to September 30, 2016, a 70 percent rating, but no higher for posttraumatic stress disorder (PTSD) is granted. From September 30, 2016, a rating in excess of 70 percent for PTSD is denied. FINDINGS OF FACT 1. For the period on appeal prior to September 30, 2016, the Veteran's service-connected PTSD more nearly approximates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. For the entire period on appeal, to include from September 30, 2016, the Veteran's PTSD has not resulted in total social and occupational impairment. CONCLUSIONS OF LAW 1. For the rating period prior to September 30, 2016, the criteria for a rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.130, Diagnostic Code 9411 (2020). 2. For the rating period beginning September 30, 2016, the criteria for a rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2004 to October 2008. This matter come before the Board of Veterans' Appeals (Board) on appeal from April 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In an August 2020 rating decision, the RO increased the Veteran’s disability rating for PTSD to 70 percent effective from September 30, 2016. This does not represent a full grant of the benefit sought on appeal, therefore, the claim for an increased rating PTSD remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Entitlement to an evaluation in excess of 30 percent prior to September 30, 2016, and in excess of 70 percent thereafter for service-connected PTSD Increased Ratings – Applicable Law and Regulations The Veteran's psychiatric disability is rated under Diagnostic Code (DC) 9411, 38 C.F.R. § 4.130. Under DC 9411, the following applies: A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when there is occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 rating is warranted when there is 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); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted 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; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Factual Background The Veteran submitted his claim for an increased rating in October 2013. VA treatment record dated in June 2013 reflect complaints of irritability, anger, and rage. The Veteran reported that his PTSD symptoms prevented him from having long term relationships. He reported having anger issues at work due to symptoms. He reported being depressed on a daily basis with decreased sleep, psychomotor agitation, decreased appetite/weight, increased feelings of worthlessness, decreased interest in and pleasurable activities. He denied suicidal ideation, but admitted to engaging in risky behavior such as riding a bike without a helmet with disregard to life threatening consequences. Currently, he was working as an emergency room tech (for the past two years) and attending school for nursing. VA treatment records dated in October 2013 reflect that the Veteran reported being consumed with more anger lately. He had no social networks. Objectively, his thought process was coherent and normal and there was no indication of active psychosis, delusions, paranoia, or suicidal/homicidal ideation. A March 2014 VA treatment record reflects that the Veteran endorsed intrusive symptoms/distress that resembled the traumatic event in Iraq; avoidance; negative alterations in mood; and excessive alcohol consumption. He reported that he was applying to nursing school and currently worked as a tech at a hospital; he reported that he liked his work. He stated that he had had several short-term relationships. He was neatly groomed; thoughts were linear; and no suicidal/homicidal ideation was reported. The Veteran underwent a VA examination in March 2014. At that time, he endorsed hypervigilance; difficulty being in crowds; difficulty sleeping; engaging in risky behaviors (“He notes that he works in an ER and also is involved in risky behaviors on his bike so that he can use all his focus and therefore he is not thinking about other things”); and road rage (“He knows that his license as a nurse is dependent on his not having a legal record”). He stated that he had not had a longterm relationship with a girlfriend because he was irritable, angry, and detached at times. The examiner described the Veteran’s level of occupational and social impairment as 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. Symptoms included anxiety, depressed mood, and chronic sleep impairment. A June 2014 VA treatment record reflects that the Veteran had a foreshortened sense of the future and thought about death frequently. However, he was not suicidal or homicidal. An August 2015 VA treatment record reflects that the Veteran was experiencing increased PTSD symptoms while being enrolled in school coursework. The Veteran reported that he was experiencing intermittent unexpected and unwanted acute anxiety symptoms including constellations of shortness of breath, sweating, sense of dread, tachycardia and impulses to escape (he often had to leave the situation). He reported that he did not want this to continue as it negatively impacted his studies. A September 2015 VA treatment record reflects that the Veteran complained of the following: “PTSD symptoms; I jump up when I hear some noise; I have to check and drive around the house when I think someone is breaking in. I cry for no particular reason. I have to leave gathering/ lectures immediately...can’t sit through a lecture and miss lots of information. Self-isolation, drinking, dreams about deployment. Hot flashes twice a week.” He reported having anxiety attacks 2-3 times a week, when he would hear loud noises and his "whole body tenses, heart racing, skin becomes clammy, face flushes, sweating, shaking legs." He reported having hard time forming relationships with anyone at school and only felt close to family and girlfriend. He reported drinking occasionally to the point where he did not care about his health or work. He used alcohol to self-medicate. He reported reckless behavior in 2011 and 2012, which included running 12 to 13 miles after a 12-hour shift in the ER, despite lack of sleep/food. When going out drinking, he reported that he would drink to the point of “don’t care if I die.” He was well-groomed with a blunted affect, dysthymic mood, and good insight/judgment. The examiner noted that the Veteran was bright, personable, motivated in school, and seemed to care about succeeding in his nursing program. He was currently a fulltime student. He denied homicidal or suicidal ideation. A September 2015 VA treatment note indicates that the Veteran had symptoms of PTSD and depression ever since leaving the military; his main symptoms were tearfulness and insomnia. The Veteran stated that playing extreme sports seemed to help; however, since being involved in a motor vehicle accident two-and-one half years prior, he has been unable to exercise and his symptoms returned. His symptoms had worsened in the past year. Core symptoms included panic attacks, generalized anxiety, hyperarousal, difficulty being in crowds or large lectures, and startle response. Currently, he was a fulltime student. His speech was normal; he had good grooming/hygiene; thought content was appropriate; judgment/insight were good; and he denies suicidal ideation. September 2016 and October 2016 VA treatment records show that the Veteran was very close to completing his nursing program but stated, "I know I'm a solid nurse [with] the firefighter back ground and other experience but I need to get my head right…I can't keep running in the bathroom crying or drink myself to sleep…” The Veteran reported that his PTSD symptoms were worsening. He complained of moderate to high hypervigilance, decreased appetite, and stress. He stated that he had been unable to tolerate prior VA PTSD treatment (prolonged exposure therapy) and that VA was a trigger for him. He reported that he started feeling more paranoid (“people might start following me”) and would vary his route home and walk past his apartment to see if anyone was following him. He even felt paranoid within his own apartment complex. He also acknowledged for the first time that he had been having intermittent thoughts of suicide over the past year. He reported being easily angered/enraged, to include when in class. His speech was normal and judgement and insight were adequate. Affect was sad. Thought process was logical. The Veteran underwent a VA examination in August 2020. The examiner described occupational and social impairment with reduced reliability and productivity. The Veteran reported that he was married but currently separated from his wife. In terms of his social support at present, he reported that his sister and mother were his main confidantes and sources of social/emotional support, until this past year. He indicated having a falling out with them. He reported having one good friend. He was currently employed as a nurse at a hospital on a fulltime basis. Since the last VA examination in 2014, he reported worsening problems with occasional angry outbursts; hypervigilance symptoms; nightly insomnia; occasional nightmares; and frequent low mood. He described having to frequently leave social situations abruptly, due to anxiety or crying. He described having a short temper and admitting that that it probably contributed to his falling out with his superiors at his last job. He also reported being unfaithful on multiple occasions in his marriage, which he admitted is why his marriage was failing and they are likely to divorce. He described feeling increasingly detached, emotionally, from his wife, mother, and sister. He indicated feeling that was easier to "just let those relationships go, rather than try to repair them.” He admitted to feelings of failure related to these failing relationships. He reported that he had contemplated suicide. He reported that he had hoped working as a nurse would give him a sense of meaning and "reason to be here,” but he lamented that his work experiences only made him feel worse. He reported decreased alertness and ability to concentrate at times while on the job, which he felt was due to his chronically poor sleep and persisting anxiety and depressive symptoms. He described a pattern of strain in his work relationships, at least partly due to his short temper. Current symptoms included depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficult adapting to stressful circumstances; and suicidal ideation. Objectively, he was dressed casually, appeared to have adequate grooming and hygiene, and demonstrated no evidence of thought disorder, cognitive deficits, or gross memory impairments. He made appropriate eye contact, and was cooperative and alert and oriented during the exam. His affect appeared to be dysthymic and anxious. He reported occasional suicidal ideation, but denied any suicidal plan or intent. He denied any homicidal ideation, plan, or intent. His symptom report did not suggest current manic/hypomanic symptoms or psychotic symptoms (no auditory/visual hallucinations or delusions). In August 2020, the Veteran submitted a statement detailing his symptoms since 2013. He stated that he had PTSD as a result of trauma sustained during two combat tours in Iraq. He stated that, at least initially, he had been able to keep most of his PTSD symptoms at bay by engaging in cycling and other sports. However, after being involved in a cycling accident in May 2013 and seriously injuring his shoulder, he was unable to exercise. He stated that his PTSD symptoms “began to emerge worse than before, I was hypervigilant, I couldn’t sleep in fear of the thought of someone trying to break into my apartment, I had outbursts of rage as well as sobbing uncontrollably. I became suspicious of friends, believing they were out to get me, I began driving around my apartment for hours at a time before parking in fear of being followed. I was increasingly distant from the support system of my mother and sister and girlfriend (now wife).” The Veteran then detailed a troubling encounter with a VA physician in which he stated, “I think I’m really going to hurt this man, and if I start to hurt him, I may kill him here in this room right now.” Thereafter, he started to believe he was losing his mind (“moments like these made me feel as if I were hallucinating”). He stated that he had nightmares and began to self-isolate. He also began to seriously contemplate suicide at this point. He stated, “I vowed never to return to the VA, partly because of the way I had been treated, and also knowing that if I were to go again and be treated the same way I may not have woken up the next time I sat with that pistol in my hand. This is why you will find no further evidence beyond this letter and a string of relationships I managed to destroy along the way to show just how bad my PTSD was during the time periods between 2013 and 2016.” Analysis Resolving reasonable doubt in the Veteran's favor, a 70 percent disability rating is warranted for the period prior to September 30, 2016; however, a disability rating in excess of that amount, for any portion of the appeal period, is denied. In this case, the evidence of record, to specifically include the 2014 and 2020 VA examination reports, VA treatment mental health records dated from 2013 to 2017, and the Veteran’s own competent and credible statements regarding his symptoms from 2013 to 2016, demonstrates that his PTSD has been productive of depressed mood; anxiety; frequent panic attacks; chronic sleep impairment; hypervigilance; social avoidance and problems with social relationships; suspiciousness; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficult adapting to stressful circumstances; engaging in risky behaviors with disregard to life threatening consequences; irritability; anger/rage; loss of interest in activities; and intermittent suicidal ideation. While many of the Veteran's symptoms are contemplated in the criteria for ratings lower than 70 percent, given his more severe symptoms of intermittent suicidal ideation, occasional engagement in risky/dangerous behaviors, and impairment related to frequent anxiety, irritability, and anger, and resolving reasonable doubt in his favor, the Veteran's symptoms reasonably approximate the nature and severity of those listed in the 70 percent criteria, to include for the period prior to September 30, 2016. In so finding, the Board acknowledges that the Veteran’s level of occupational and social impairment on VA examination in 2014 was assessed as being commensurate with a 30 percent rating; nevertheless, as shown by the evidence outlined above, the contemporaneous record unequivocally showed deficiencies in many areas of his life including school/work, family, social relations, and mood. Given this, along with the level of symptomology and impairment reflected in the medical record and the Veteran's lay statements, his psychiatric disability, as a whole, has approximated the criteria for a 70 percent rating under DC 9411 for the period prior to September 30, 2016. However, at no point during the appeal period have the Veteran's symptoms approximated the nature and severity of those listed in the criteria for a 100 percent rating under DC 9411, or has his level of occupational and social impairment been one that can be considered "total." Indeed, while there can be no doubt that his PTSD symptoms have impacted his occupational and social functioning, the Veteran has either been employed as a nurse or engaged in full-time nursing studies throughout the entire appeal period; he has also been shown to have at least one close friend/confidante and enjoys riding his bike for fun. Such is simply not commensurate with “total” occupational and social impairment. Moreover, no VA examiner or mental health clinician has ever assessed the Veteran’s occupational and social impairment as being “total” in nature. Mental status evaluations throughout the appeal period have been essentially normal, and no symptom listed in the 100 percent criteria was identified on either VA examination. Those symptoms, identified and discussed above, that have characterized the Veteran's psychiatric disability are not of the severity of gross impairment in thought processes or communication, intermittent inability to perform activities of daily living, grossly inappropriate behavior, disorientation, severe memory loss, or any of the criteria listed for a 100 percent rating under DC 9411. To the extent that the Veteran has been noted to have a singular, self-reported homicidal thought (see, e.g., August 2020 statement); intermittent engagement in risky behaviors; and occasional suicidal ideations, he has never been evaluated as being a persistent harm to himself or others or having grossly inappropriate behavior, and he has not asserted that his symptoms have been of any such frequency or severity. Also, while the Veteran reported on one occasion that he felt as if he were hallucinating (see, e.g., August 2020 statement), there has never been any assessment of psychotic or delusional/hallucinatory behavior on any evaluation/examination, and none has ever been noted beyond the Veteran's general report of such in his August 2020 statement. Simply stated, the frequency, severity, and duration of the above symptoms simply do not rise to the level of “total” occupational and social impairment contemplated by the 100 percent rating criteria for any portion of the appeal period. For these reasons, the Board finds that a rating in excess of 70 percent for PTSD is not warranted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Hoeft 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.