Citation Nr: 21013525 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-48 181 DATE: March 9, 2021 ORDER Entitlement to a rating in excess of 50 percent prior to July 22, 2016 for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT For the appeal period prior to July 22, 2016, the Veteran’s PTSD did not more nearly reflect occupational and social impairment with deficiencies in most areas due to the severity, frequency, and duration of psychiatric symptoms. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for PTSD for the appeal period prior to July 22, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from October 2002 to October 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a January 2019 decision, the Board denied the Veteran’s claim for an increased rating for the appeal period prior to July 22, 2016. Subsequently, the Veteran appealed the Board's denial to the United States Court of Appeals for Veterans' Claims (Court), which pursuant to a May 2020 Memorandum Decision, vacated the Board's decision to the extent the Veteran's claims were denied, and remanded the matter for further consideration. Specifically, the Court emphasized that the Board’s reasons and bases analysis was inadequate. This matter now returns to the Board for further appellate review. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claim. Entitlement to a rating in excess of 50 percent for the appeal period prior to July 22, 2016 for PTSD is denied. The Veteran contends that his PTSD symptoms reflects a 70 percent disabling for the appeal period prior to July 22, 2016. See September 2016 VA Form 9. As discussed in the January 2019 Board decision, the Veteran argued in his September 2016 VA Form 9, that a 70 percent rating was warranted prior to July 22, 2016. He did not argue that VA erred in assigning a 70 percent rating for PTSD, in the August 2016 rating decision, but rather that the effective date of the award was incorrect. As such, the Board has construed the appeal as a claim for increase for the period prior to July 22, 3016. Under the General Rating Formula for Mental Disorders, 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 than once a week; difficulty 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, Diagnostic Code 9411. A 70 percent 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 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, or 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 work-like setting; and the inability to establish and maintain effective relationships. Id. The maximum schedular rating of 100 percent is warranted when there is 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. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013), the Federal Circuit stated that "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." It was further noted that " § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." The Board continues to conclude that the Veteran’s functional impairments due to not warrant a rating in excess of 50 percent for the appeal period prior to July 22, 2016. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating, as occupational and social impairment with deficiencies in most areas have not been shown. During a January 2014 PTSD screening, the Veteran’s reactions to the targeted questions were mostly “moderately,” “a little bit” or “not at all.” When asked whether he was feeling irritable or having angry outbursts the Veteran responded, “not at all.” When asked whether he had a loss of interest in activities that he used to enjoy, he responded, “a little bit.” When asked whether he felt distant or cut off from other people, he responded, “not at all.” When asked if he was being super alert or watchful or on guard, the Veteran responded, “a little bit.” When asked whether he felt jumpy or easily startled he responded, “a little bit.” Furthermore, when the Veteran was specifically asked about suicidal ideations, the Veteran responded no to all the questions that were asked. When the examiner asked the Veteran whether he was feeling hopeless about the present or future, he responded, “no.” When he was asked whether he had thoughts about taking his life, he said, “no.” When he was asked whether he ever had a suicide attempt, the Veteran responded, “no.” During the August 2014 VA examination for his PTSD, the Veteran stated that that he is married with three children. He stated that his home life is “good and bad.” He stated that he has marital conflict with his wife, who is contemplating to separate from him because he is hard to live with. The Veteran stated that he has few friends and he does not spend much time with them. He instead spends his free time with his children at home and engages in recreational activities like hiking. He stated that he had an altercation with his neighbor that was provoked and caused disciplinary actions at his job. He notes that he has some road rage when driving and prefers not to shop around people but can do it. The Veteran mentions that he has been employed with Border Patrol for six and half years and stated that his job was going “good.” He states that he gets along with his co-workers mostly but there have been some conflicts. He states that he is "always on time" showing up and is a reliable worker and states that he has little life outside of work. It was noted that the Veteran had anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. At that time, he was prescribed multiple medications. However, the Veteran felt the medications were unhelpful and caused daytime drowsiness. The examiner observed that the Veteran was cooperative and pleasant and summarized the Veteran’s occupational and social impairment as having 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. During a May 2016 PTSD screening, the Veteran was asked whether he felt hopeless about the present/future? He answered, “no.” He was asked whether he had thoughts about taking his life? He answered, “no.” He was asked whether he had a suicide attempt? He answered, “no.” The examiner observed that he was very pleasant and casually dressed and groomed. The Veteran’s speech and tone was good and his mood seemed stable. The Veteran denied suicidal ideations, hallucinations, delusions or paranoia. The Veteran stated that he could function with groups, but does not like it. He also stated that he had intrusive thoughts, was hypervigilant and hyperacuity. In a July 2016 VA examination, the examiner emphasized that the evaluation will focus on the Veteran's mental health diagnosis, treatment and impact of symptoms during the review period August 27, 2014 to July 22, 2016. When asked about his social functioning during the period, the Veteran replied, "I am way less social. I used to do and enjoy a lot things and now I don't enjoy doing anything. I used to have people over to the house, and cook wings etc. I don't even make friends anymore and I just recently moved." When the Veteran was asked about his marital history, he replied, "I have been married the whole time. Right now, it is a strained relationship. She is ill right now. We argue more. I used to rely on her for a lot of things. We have three kids it seems to me she seems to let those responsibilities go. She wants to take up more responsibilities but not taking care of the ones she had before and I have to pick it up." When the examiner asked the Veteran about his relationship with his children, he replied, "Good, one is eight, one is six and one is three. I should probably do more with them. I have been the primary disciplinarian. My wife will say when I get home. You deal with it." When asked about his relationship with extended family, he replied, "That is a case by case basis, my parents it is the same.” When asked about any hobbies and or things he likes to do with friends, he replied, "Nope." When asked about his occupational functioning during the period, he replied, "It is same old same old. I am a Border Patrol Agent. We go in the woods and around. I have been a Border Patrol Agent for 8 and a half years." When asked about any psychiatric hospitalization during the period, he replied, "No." When asked about any history of a manic episode, he replied, "No." When asked about any history of non-substance induced hallucinations, he replied, "I have these floaters in my eyes. It is just movement but there is nothing there." When asked about any suicidal ideation or attempts, he replied, "No attempts, [or] thoughts I couldn't do that cause there are too many people who rely on me." When asked how much he drinks when he does drink, he replied, "Since I been on day shift, I come home and have two maybe three a night." The examiner summarized the Veteran’s PTSD symptoms as 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, suicidal ideations, obsessional rituals which interfere with routine activities and rumination. The examiner observed that the Veteran was oriented to time, place and person. He did not display any overt signs or symptoms of any ongoing psychotic processes. His thought process appeared logical and sequential. His speech was coherent, fluent and goal directed. The Veteran's mood appeared mildly anxious. The Veteran displayed a limited range of affect. The Veteran self-care and hygiene appeared good. The Veteran appeared to be functioning in the average range of intellectual abilities. He was cooperative throughout the evaluation process and seemed capable of managing his or her financial affairs. The examiner summarized the Veteran’s occupational and social impairment as having 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 Veteran specifically stated in his September 2016 Form 9, that his PTSD symptoms affected his first marriage and is currently affecting his current marriage, in which his wife is considering divorce. He further stated that his unexplainable angry outbursts cause stress with his kids and neighbors. In addition, the Veteran stated that he has regular panic attacks and he cannot perform in groups at work, as well as, has little interest in doing activities for pleasure and just barely has the motivation to get through the day. For the appeal period prior to July 22, 2016, the Board finds that the criteria for a 70 percent rating under the General Rating Formula are not met. Impairment to mood was shown as the Veteran reported depression and anxiety. Some impairment to family relations was demonstrated as the Veteran stated that his marriage was strained because of his PTSD symptoms but he also stated that his wife was ill and lack responsible habits when caring for their children which caused more arguments. He said that his relationship with his children is good, although he believes he should do more with them. In addition, he said his relationship with his extended family is on a, “case by case basis.” See July 2016 VA examination. Impairment to work was not demonstrated as the Veteran maintained employment. He did not report whether his workplace was stressful, but he did mention that he does not like to work in groups, but can still function in work groups. See July 2016 VA examination. The Veteran stated that he worked at his job for eight years and that it was “good,” he was a reliable employee and got to work on time. He mentioned that he did not like to work in groups, but he was able to still maintain a working relationship with his co-workers and that he gets along with his co-workers mostly. See August 2014 VA examination. The Veteran reported being disciplined at work for an altercation with his neighbor, but not with his co-workers. See August 2014 VA examination. Judgment was not found to be impaired. Thinking was not found to be impaired as the Veteran consistently denied hallucinations, delusions and paranoia and none were found on objective examination. In the July 2016 examination, the examiner observed that the Veteran’s thought process appeared logical and sequential. Schooling was not attempted during the appeal period. With regards to social functioning, the Veteran reported that he had a few friends in August 2014 and later reported in July 2016 that he had moved and did not make friends. When asked whether he felt distant or cut off from other people, he responded, “not at all.” See January 2014 PTSD screening. The Veteran did, on occasion, report suicidal ideations and a fear that reporting these ideations would harm his career in law enforcement. However, the Veteran also denied such ideations on multiple occasions. He explicitly stated more often than not that he did not have suicidal ideations and he emphasized during the July 2016 examination that he had, "No attempts, [or] thoughts, I couldn't do that cause there are too many people who rely on me.” During the January 2014 PTSD screening, the Veteran was asked whether he had suicidal ideations and the Veteran responded, “no.” With regards to impaired impulse control, the Veteran stated that he had angry outbursts and also stated that he did not. In the January 2014 PTSD screening, to a question of whether he was feeling irritable or having angry outbursts, the Veteran responded, “not at all.” When the Veteran described the altercation with his neighbor, it was noted as a situation that was provoked, not unprovoked. See August 2014 VA examination. The Veteran has never been incarcerated or had legal issues as a result of his angry outbursts. With regards to an inability to establish and maintain effective relationships, the Board notes that the Veteran moved during the appeal period and reported that he was unable to make friends. However, the Veteran also reported maintaining a relationship with his wife and children. The Veteran has not alleged, and the record does not demonstrate, obsessional rituals which interfere with routine activities, speech that is intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively or spatial disorientation. Neglect of personal appearance and hygiene was not demonstrated in the record as the examiners have consistently found the Veteran to be dressed and is appearance good. Therefore, occupational and occupational impairment with deficiencies in most areas was not demonstrated for the appeal period prior to July 22, 2016. The Board notes that the Veteran has reported other symptoms and functional impairments related to his PTSD, to include intrusive thoughts, avoidance, disinterest in formerly pleasurable activities and memory impairment. Moreover, the symptoms listed under the 70 percent rating are essentially examples of the type and degree of symptoms for that rating, and that the Veteran need not demonstrate those exact symptoms to warrant a 70 percent rating. See Mauerhan v. Principi, supra. However, the July 2016 VA examiner found the Veteran’s reported memory loss to be only mild. Although the Veteran generally reported intrusive thoughts and avoidance, he did not report any functional impairment related to such thoughts or avoidance. The Veteran reported disinterest in formerly pleasurable activities and low motivation; however, he was able to maintain relationships with his family and maintain his employment despite such reported symptoms. He also reported that he was exercising and hiking more and that his motivation was good in a June 2016 VA treatment note and that his motivation was improving in a July 2016 VA treatment note. In an August 2014 VA examination, the Veteran reported that he spent his free time with his children and going on recreational activities such as hiking. In a July 22, 2016 VA examination, the Veteran reported that he had recently moved, that he was way less social and that he did not enjoy doing anything. However, the Veteran reported that he was active at work and home in a July 15, 2016 VA treatment note. Therefore, the Board finds that the preponderance of the evidence shows that the Veteran's PTSD symptoms more nearly approximate occupational and social impairment with reduced reliability and productivity due to his PTSD symptoms. Moreover, the Board finds that the criteria for a 100 percent rating under the General Rating Formula are not met. In this regard, the evidence does not show that the Veteran has 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. In this regard, there was no evidence of perceptual disturbances such as hallucinations, mania or psychosis found on mental status examinations. The Veteran's thought processes were found be impaired, but logical and coherent as discussed above. The Veteran did not report an inability to perform daily tasks, in fact, he reported that he worked regularly and took care of his children. See July 2016 VA examination. Moreover, the Veteran has consistently been found to have appropriate hygiene and appearance and he has not alleged being unable to maintain minimal personal hygiene. Total social impairment was not demonstrated as the Veteran reported maintaining a relationship with his wife, and children, although he feels like it is strained, and he could be doing more for his children. See July 2016 VA examination. Total occupational impairment was not demonstrated as the Veteran reported working as a Border Patrol for eight years, being a good employee. See July 2016 VA examination. Additionally, none of the Veteran's PTSD symptoms are similar in severity, frequency, or duration as found necessary for the assignment of a 100 percent rating. The Board acknowledges the Veteran's belief that his psychiatric symptoms are more severe than the current rating reflects. While the Board recognizes that the Veteran is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability considering the rating criteria to be more persuasive than the Veteran’s reports regarding the severity of his condition. Therefore, the medical opinions hold more probative weight than the Veteran’s assertions. The Board has addressed stage ratings under Hart v. Mansfield, supra and confirms that the Veteran’s symptomatology is consistent with the staged rating on appeal period. Furthermore, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not demonstrated an inability to obtain and maintain substantially gainful employment due to his PTSD symptoms. In fact, the Veteran has consistently worked in law enforcement and has emphasized that he did not want his PTSD symptoms to affect his employment. Thus, a TDIU under Rice has not been raised. Therefore, the Board concludes that the preponderance of the evidence is against finding that the Veteran meets the criteria for a rating in excess of 50 percent for the appeal period prior to July 22, 2016. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Adeyemi, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.