Citation Nr: 21010529 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 13-06 482 DATE: February 25, 2021 ORDER A rating in excess of 50 percent prior to April 22, 2015 for post-traumatic stress disorder with major depressive disorder (PTSD with MDD) is denied. From April 22, 2015 onwards, a 70 percent rating for PTSD with MDD is granted. A rating in excess of 70 percent for PTSD with MDD is denied. FINDINGS OF FACT 1. Prior to April 22, 2015, the Veteran’s service-connected PTSD with MDD symptoms resulted in occupational and social impairment with reduced reliability and productivity. 2. From April 22, 2015 onwards, the Veteran’s service-connected PTSD with MDD symptoms have resulted in occupational and social impairment with deficiencies in most areas; but has not resulted in total occupational and social impairment at any point during the appeal period. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD with MDD have not been met for the appeal period prior to April 22, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a 70 percent rating for a service-connected PTSD with MDD have been met from April 22, 2015 onwards. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for a rating in excess of 70 percent for a service-connected PTSD with MDD have not been met at any point during the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 2005 to April 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision from a Department of Veterans Affairs (VA) Regional Office. This matter was previously remanded by the Board for further evidentiary development in January 2019 and October 2020. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Additionally, pursuant to a July 2019 U.S. Court of Appeals for Veterans’ Claims (CAVC) memorandum decision, the issue of whether a rating in excess of 50 percent for PTSD with MDD is warranted prior to November 9, 2012 was remanded back to the Board and separately adjudicated in a March 2020 Board decision. CAVC also instructed the Board to determine whether the Veteran’s bulimia symptoms are separate manifestations of her service-connected PTSD with MDD and therefore warrant a separate disability rating. In the same March 2020 Board decision, it was determined that the Veteran’s bulimia was at least as likely as not aggravated by her service-connected PTSD with MDD. In that decision, the matter was referred to Agency of Original Jurisdiction (AOJ) pending the receipt of a formal claim for service connection. A disability rating in excess of 50 percent from November 9, 2012 to October 29, 2019, and in excess of 70 percent thereafter for PTSD with MDD Legal Criteria Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. When a question arises as to which of two ratings shall be applied under a diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s PTSD with MDD is rated under the General Rating Formula for Mental Disorders, which provides that a 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as, for example: 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. A 70 percent rating is warranted 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, for example: 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. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as, for example: 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. 38 C.F.R. § 4.130. The symptoms listed in VA’s general rating formula for mental disorders are not an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board is precluded from differentiating between symptoms attributable to service-connected and nonservice-connected mental health disorders absent clinical evidence clearly showing such distinction. Mittleider v. West, 11 Vet. App. 181, 182 (1998). When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a). The evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the time of examination. Further, a rating cannot be assigned solely based on social impairment. 38 C.F.R. § 4.126 (b). Separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App, 119 (1999). Factual Background & Analysis On appeal is whether higher ratings are warranted for service-connected PTSD with MDD stemming from an in-service sexual assault for the appeal period from November 9, 2012 through the present. VA psychiatric treatment notes dating from November 2012 to March 2014 document symptoms of depression and anxiety, the Veteran reported having difficulty in social situations experiencing sweating and hand shaking. She reported sleeping an average of 5 hours a day and feeling tired during the day. Her mood and memory were generally noted to be stable. On September 2014 VA psychological examination the Veteran’s psychiatric symptoms were noted to be intrusive symptoms, avoidance symptoms, hypervigilance, negative cognition, mood, impaired concentration and sleep disturbance. The Veteran reported graduating with a degree in fashion design in March 2013 and not having any issues with respect to occupational impairment. The Veteran reported being depressed and anhedonic almost all the time. About the only time that she reported feeling good is when she is hiking or when she is by herself. She has occasional crying spells. The Veteran further stated that prior to developing her psychiatric symptoms she was fairly social and would go out with people, she now stays at home and avoids most social contact. For VA rating purposes, the following symptoms were also noted to apply to the Veteran’s psychiatric disorders: depressed mood, mild memory loss, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The examiner remarked that the Veteran does not experience impairment in social functioning due to her psychiatric disorders, although some impact on employment was noted. The Veteran denied any suicidal or homicidal ideation. VA mental health counseling progress notes dating from May 2014 to July 2015 generally describe symptoms of anxiety, sleep disturbance, intrusive thoughts, mildly depressed mood, poor concentration, insomnia, irritability, restlessness and low self-esteem. She reported managing her anger with positive coping skills and self-care. One April 2015 progress note documents worsening PTSD symptoms. The Veteran was observed to be “tearful and upset,” she stated that she had been overwhelmed with anger and broke her hand punching her countertop. She further communicated that she can control her irritability at work but that she falls apart at home when thinking about the in-service sexual assault. The Veteran reported thinking about the incident often and her bunkmate who was also assaulted and subsequently took her own life. The Veteran explained that she has had suicidal ideation but does not have a plan to harm herself or intend to do so. She was not noted to be at a heightened risk for self-harm. On November 2017 VA psychological examination the Veteran was noted to reside alone and not have interpersonal friendships. She reported some difficulty with concentration at work but denied any problems with her work performance. She misses work once every couple of weeks due to symptoms of anxiety and depression. Her current symptoms were described as intrusive memories related to a sexual assault during service. She sometimes starts crying and takes 10 to 15 minutes to recover. She endorsed having negative beliefs regarding trust, safety and control. She reported heightened irritability and angry episodes, depressive symptoms, including low mood, lack of motivation, hypersomnia, isolation, pessimism, neglect of personal appearance, and hopelessness. She described her symptoms as constant, with periods of worsening within the past year and a half when her binging and purging resumed. She endorsed fleeting passive suicidal ideation and denies any active suicidal ideation, intent, or plan. She was noted to have never attempted suicide. Additional symptoms were noted to be anxiety when she meets new people and avoidance of social situations. She reported an increase in social anxiety within the past couple years. She avoids interacting with others at work and at yoga. She avoids going out in public and will only go to the grocery store during off-peak hours. She described having panic attacks a couple times per week. For VA rating purposes, the following symptoms were noted to actively apply to the Veteran’s PTSD with MDD: depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and obsessional rituals which interfere with routine activities. On October 2019 VA psychological examination the Veteran described symptoms of largely static distrust, depression/anxiety, hypervigilance, intrusive thoughts with recent suicidal ideation (passive thoughts without plan or intent). The Veteran communicated that she currently works as a Visual Information Specialist for VA and that she does well at her current position with no occupational deficits. The Veteran was indicated to have occupational and social impairment in most areas of functioning. For VA ratings purposes, the Veteran’s PTSD with MDD was noted to be characterized by the following symptoms: depressed mood, anxiety, suspiciousness, near continuous panic/depression, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in maintaining/ establishing effective work relationships, difficulty adapting to stressful circumstances, inability to maintain effective relationships and suicidal ideation. An October 2020 VA addendum medical opinion states that the medical evidence is silent for suicidal ideation per clinical encounters in 2008, 2011, 2014, 2015 and 2018. The examiner stated that the Veteran disclosed passive suicidal ideation in 2017 with no actual attempts made. Initially, the Board finds that the preponderance of the evidence weighs against finding that the Veteran’s PTSD with MDD caused deficiencies in most areas of functioning prior to April 22, 2015, thereby warranting a rating in excess of 50 percent for this period on appeal. A higher 70 percent rating is warranted for symptoms such 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); or an inability to establish and maintain effective relationships. DC 9411. During this period the Veteran was noted to have difficulty in establishing and maintaining effective relationships; however, the entirety of the Veteran’s disability picture must be analyzed to determine whether the Veteran’s PTSD with MDD caused occupational and social impairment with deficiencies in most areas during this period. In that regard, the Veteran was noted to be socially isolated during this period, but she also self-reported experiencing no occupational impairment from her psychiatric symptoms. Overall, the evidence indicates that the Veteran appears to have retained a notable degree of normal functioning in terms of her work, judgment, thinking and mood during this period. Consequently, the preponderance of the evidence pertaining to the period on appeal prior to April 22, 2015 weighs against finding that the Veteran’s PTSD with MDD caused symptoms and deficiencies approximating occupational and social impairment with deficiencies in most areas which would warrant higher 70 percent rating and, to that extent, the appeal must be denied. The Board has next determined that the Veteran’s service-connected PTSD with MDD has caused severe deficiencies in most areas of functioning from April 2015 onwards. Notably, an April 22, 2015 VA mental health progress note documented symptoms of suicidal ideation, impaired impulse control (punched her countertop breaking her hand) and inability to establish and maintain effective relationships (noted during this time period to have almost no social interaction with friends/coworkers). Significantly, these symptoms are tantamount to, or approximate some of those specifically contemplated by a higher 70 percent disability rating. DC 9411. Under the circumstances, the Board finds the evidence is certainly in relative equipoise as to whether the Veteran’s service-connected psychiatric disorder has caused deficiencies in most areas of functioning from at least April 22, 2015 onwards. Specifically, with respect to impairment of mood (irritability, anger, depression, and anxiety issues), thinking (suicidal ideation, hypervigilance, lack of concentration, low self-esteem and intrusive thinking) and judgment (impaired impulse control). Consequently, and resolving all reasonable doubt in favor of the Veteran, the criteria for a 70 percent rating for PTSD has been met from at least April 22, 2015 onwards. Finally, the Board finds that the Veteran’s PTSD symptoms have not caused a degree of impairment contemplated by a still higher 100 percent rating criteria (total occupational and social impairment) at any point during the period on appeal. The Veteran has not shown any of the symptoms contemplated under the rating criteria that typify a 100 percent rating on objective examination or in her detailed subjective reports of symptoms. Moreover, the many mental health evaluations of record describe her behavior in mostly unremarkable terms (oriented to person, time and place and adequately groomed) and have never been suggestive of a disability picture consistent with total occupational or social impairment. While the Veteran’s PTSD has been intermittently characterized by suicidal ideation, the medical evidence does not suggest that the Veteran is a persistent danger to herself or others, as contemplated by the criteria for a 100 percent rating. DC 9411. Rather, during the appeal period, she has never been assessed to be at a substantially heightened risk for self-harm, and the October 2020 VA medical addendum opinion noted that the Veteran has intermittently not reported any suicidal ideation over the years and has not made any concrete plans or attempts to harm herself. In addition, the Veteran’s occupational functioning has remained relatively undisturbed by her psychiatric symptoms. She has consistently denied any work-related impairments stemming from her service-connected PTSD with MDD. Therefore, while the Veteran’s PTSD with MDD is admittedly serious, the preponderance of the evidence is not weighted toward findings that her symptoms approximates the frequency or duration contemplated by a still higher 100 percent rating. To the contrary, the Veteran appears to have retained at least some degree of normal functioning, particularly with respect to her occupational performance, despite intermittent exacerbations and remissions of serious symptoms. (Continued on the next page)   Consequently, the Board finds the preponderance of the evidence is against finding the Veteran’s PTSD with MDD causes symptoms and deficiencies approximating total occupational and social impairment contemplated by a higher 100 percent rating and, to that extent, the appeal must be denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.