Citation Nr: 21013798 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-22 525 DATE: March 10, 2021 ORDER Entitlement to a rating in excess of 30 percent prior to December 26, 2019, and in excess of 70 percent thereafter, for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. Prior to December 26, 2019, the Veteran’s psychiatric symptoms have been characterized by occupational and social impairment with occasional decrease in work activity; occupational and social impairment with reduced reliability and productivity has not been shown. 2. As of December 26, 2019, the Veteran’s psychiatric symptoms have been characterized by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; total occupational and social impairment has not been shown. CONCLUSION OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent prior to December 26, 2019 for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a rating in excess of 70 percent as of December 26, 2019 for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 4.1, 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from September 1969 to September 1971. The Board of Veterans’ Appeals (Board) remanded the matter in December 2019 to obtain an addendum medical opinion that considers all the evidence of record, including all the Veteran’s lay statements. The Board is now satisfied that there was substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-147 (1999). Increased Rating Disability evaluations are determined by applying a schedule of ratings which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). 1. Entitlement to increased rating for an acquired psychiatric disorder, to include PTSD Prior to December 26, 2019, the Veteran has been in receipt of a 30 percent rating for an acquired psychiatric disorder, to include PTSD, under 38 C.F.R. § 4.130, DC 9411. From December 26, 2019, the Veteran has been in receipt of a 70 percent rating for his psychological disability under 38 C.F.R. § 4.130, DC 9411. He contends that his symptoms of acquired psychiatric disorder merit increased ratings, and that he experiences a wide range of symptoms, which includes suicidal ideation, nightmares, difficulty sleeping, fatigue, isolation, paranoia, decreased energy, short-term memory loss, feelings of depression, uncontrolled anger and outbursts, and feelings of guilt and worthlessness. A 30 percent rating is warranted where 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 normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to symptoms such as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. In order to warrant a 70 percent rating, the evidence must show occupational and social impairment with deficiencies in most areas, such as work, school, family, relationships, judgment, thinking, or mood, due to symptoms such as, but not limited to, suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control (such as unprovoked irritability with periods of violence); near-continuous panic or depression affecting ability to function independently, appropriately, and effectively; spatial disorientation; speech intermittently illogical, obscure, or irrelevant; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. In order to warrant a 100 percent rating, the evidence must show total occupational and social impairment, due to such symptoms as, but not limited to, 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 personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated DSM-5. As the Veteran's increased rating claim was originally certified to the Board after August 4, 2014, the DSM-5 is applicable to this case. According to the DSM-5, clinicians do not typically assess Global Assessment Functioning (GAF) scores. See Golden v. Shulkin, 29 Vet. App. 221 (2018). Therefore, they are not considered here. Prior to December 26, 2019 After a review of the evidence of record, the Board first determines that an increased rating in excess of 30 percent prior to December 26, 2019 is not warranted. Indeed, while the Veteran had occasional symptoms that could support a higher rating, they did not, on balance, cause social and occupational impairment with reduced reliability and productivity. Specifically, between December 2011 and December 2012, while the Veteran reported some severe symptoms to treating VA physicians, his symptoms overall appeared to be mild. The Veteran reported experiencing feelings of depression and hopelessness, angry outbursts, suspiciousness, hypervigilance, difficulty sleeping, nightmares, difficulty concentrating, feeling detached from others, and a loss of interest in activities he used to enjoy. Furthermore, he noted that he did not like being in crowds or crowded rooms, was easily startled by strange noises, and had to sit in a booth in the back corner of a restaurant. He also reported avoiding things that reminded him of the traumatic in-service event, which he described as seeing the bodies of deceased children in his unit’s claymore mines. Lastly, the Veteran reported suicidal ideation and feelings that he would be better off dead in January 2012, before the relevant period at issue. However, during that same period, he also reported that he did not feel bad about himself. He reported that he felt more relaxed after he was laid off from his job in April 2012 and was regularly engaging in leisure activities, such as fishing, hunting, traveling with his wife, going to antique stores, and visiting a friend while on vacation. His physician described his PTSD as “at baseline,” and the Veteran reported lower stress levels. He also reported having nightmares about Vietnam only twice per month. During that period, there were no other reports of suicidal ideation. The Veteran was simply treated with counseling and educational materials to teach him healthier stress management and coping skills. This does not, overall, demonstrate panic attacks more than once per week, difficulty in understanding complex commands, impaired abstract thinking, impaired long-term memory, or difficulty establishing and maintaining effective work and social relationships contemplated by a 50 percent or greater rating. Next, the Veteran underwent a VA examination in January 2013. He reported isolating from others, difficulty sleeping, fatigue, nightmares, anger issues, memory difficulties, and disliking change. The Veteran also reported experiencing suicidal ideation three or four times in as many years, with the most recent event occurring in November 2012 when he was stressed during Thanksgiving over family and lack of sleep. While he described having a plan, the Veteran did not attempt to harm himself. Despite the aforementioned symptoms, he reported having pretty good energy levels, a fairly good appetite, getting along with family, coworkers, and bosses, engaging in leisure activities, and being able to perform his activities of daily living. The examiner noted a diagnosis of PTSD and reported that the Veteran experienced recurrent and distressing recollections of the traumatic event, avoidance behaviors, and difficulty sleeping, but did not indicate any observed symptoms other than those reported by the Veteran. Upon examination, the examiner noted that the Veteran had friendly, expressive, responsive, emotional reactions. Overall, the examiner opined that while a mental condition had been formally diagnosed, the symptoms are not severe enough either to interfere with occupational and social functioning, or to require continuous medication. The Board determined in an April 2018 decision that a new VA examination was needed to determine the current level of severity of the Veteran’s psychiatric disorder and because the Veteran alleged that the January 2013 VA examiner did not fully consider his lay statements. As such, a new examination was ordered. However, the evidence of record before and after the January 2013 VA examination are generally consistent with the examiner’s report and do not demonstrate symptoms representative of a rating greater than 30 percent. Specifically, medical records between January 2013 and April 2014 showed generally mild symptoms. While the Veteran’s depression was described as “moderate” in January 2013, he reported increased stress around his VA examination. Although he reported feeling happiest when he is alone, he was described in the record as clinically stable. He also reported getting along well with his wife, having fewer nightmares, feeling pretty good, and that his depression improved, causing things not to bother him as much as they used to. The Veteran reported in July 2014 and September 2014 that his mood was down, he was having more nightmares about Vietnam than usual, and he wanted to stay home all the time. He also avoided watching the news, particularly about events in Iraq. Additionally, he was having trouble sleeping again, and he felt like activities he enjoyed, such as fishing, felt like too much of a chore. However, the remainder of his medical records through December 2019 showed generally mild and well-controlled symptoms that did not meet the level of a 50 percent or greater rating. Specifically, when the Veteran reported increased symptoms in July 2014, he also reported that he had just lost a brother-in-law to cancer the previous week. In August 2018, he reported his depression and PTSD as stable, he denied homicidal or suicidal ideation, and he had a normal affect. Similarly, in October 2018, he denied depression, had a normal affect, and was in no apparent distress. Finally, in November 2019, his physician noted that his PTSD, insomnia, and depression were stable on medication, and the Veteran declined a mental health consultation. There is no evidence in the record of any hospitalizations or escalating treatment for mental health symptoms, and his symptoms were generally mild. In addition to the medical records, the Veteran underwent a second VA examination in September 2019. He reported experiencing recurrent distressing memories and dreams of his traumatic in-service event, avoidance behaviors, persistent negative beliefs about himself or others, feelings of detachment from others, difficulty concentrating, sleep impairment, and mild memory loss. He also reported irritable behavior, angry outbursts, and hypervigilance. The examiner noted that all other symptoms remained unchanged since his 2013 examination. After examining the Veteran and reviewing the evidence of record, the examiner opined that the Veteran’s “irritability and ongoing avoidance compromise his problem-solving skills, hence he has difficulty working through conflict and tensions which typify work situations.” The examiner also opined that the Veteran had 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. In addition to describing the Veteran’s symptoms as only “mild” and “transient,” upon examination, the examiner observed the Veteran as timely for his appointment, appropriately dressed, having clear, direct, and well-organized speech, having an anxious mood but being generally affable despite this, having no indication of thought or perceptual distortion, and having logical and systematic stream of thought despite some apprehension. The symptoms observed by the examiner were much milder than those associated with a 50 percent disability rating. In December 2019, the Board again determined that a new VA examination was required because it was not apparent that the September 2019 examiner considered all the Veteran’s lay statements. Despite this, the Board finds that neither the Veteran’s lay statements nor the medical evidence of record prior to December 26, 2019 support a rating greater than 30 percent. While the Veteran’s displayed symptoms were significant, such as suicidal ideation, intermittent periods of inability to perform tasks, depressed mood, chronic sleep impairment, suspiciousness, and mild memory loss, the Board determines that they were most accurately contemplated by the 30 percent rating that he was assigned prior to December 26, 2019. Of particular note, the symptoms associated with a 50 percent rating are severe, including panic attacks more than once a week; circumstantial, circumlocutory or stereotyped speech; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; and difficulty in establishing and maintaining effective work and social relationships. It is reasonable to believe that such symptoms would be severe enough that they would be noted in the evidence of record. Here, such severe impairment is not shown. Indeed, the medical appointments and VA examinations prior to December 26, 2019 generally indicate the Veteran was pleasant, friendly, and affable, had normal speech and thought processes, did not report experiencing panic attacks to treating physicians, was able to maintain good relationships with others, and performed activities of daily living independently. The Veteran contends that his symptoms that included isolation and suicidal ideations warrant a rating greater than 30 percent. However, the VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the Veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115-117 (Fed. Cir. 2013). It is true that the Veteran reported suicidal ideation during the January 2013 VA examination and reported nightmares, trouble sleeping, anger, and isolating throughout the record. He also reported that he has feelings of anxiety and panic attacks. However, the Board would emphasize that it is the Veteran’s overall psychiatric profile that is considered, and there are no “tripwire” symptoms that would trigger a higher rating per se. Rather, the Board determines that his symptoms, in their totality, represent a generally relatively mild array of symptoms and impact on the Veteran, especially in the light of the fact that he displayed clear, direct, and well-organized speech and thought processes, normal affect, no evidence of violence, good hygiene, and good relationships with family. Additionally, while the Veteran reported having panic attacks, those are not mentioned anywhere in his almost-monthly mental health counseling records prior to December 29, 2019, nor did he report suicidal ideation between his January 2013 VA examination and September 2019 VA examination. The infrequent reports of suicidal ideation, while considered, do not appear to be indicative of the Veteran’s acquired psychiatric disability symptomatology. Therefore, an increased rating is not warranted based on his clinically observed symptoms. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there were other indications of occupational and social impairment, such as difficulty in adapting to stressful circumstances or difficulty establishing and maintaining effective work and social relationships. In this regard, the evidence shows that the Veteran’s acquired psychiatric disorders and their manifestations were adequately contemplated by the assigned 30 percent rating prior to December 26, 2019. During his January 2013 VA examination, the Veteran reported a good relationship with his wife, to whom he has been married since 1999. He also reported being in contact with family often, and at times having his adult daughters live at home with him. While he reported during his January 2013 VA examination that he did not have friends, was a loner, and did everything by himself, he also admitted that he went to picnics and dinners with firefighter friends accompanied by his wife, and he reported visiting a friend during vacation in September 2012. Prior to December 26, 2019, the Veteran reported regularly going on vacations with his wife, and he went to Florida as recently as April 2019. He also reported that he enjoyed leisure activities such as hunting, fishing, riding all-terrain vehicles, and gardening. This demonstrates that the Veteran was able to establish and maintain family and friend relationships, leave the house, and engage in social activities. In addition to interpersonal relationships, the Veteran also had a good employment history, demonstrating that that his memory, concentration, and interpersonal difficulties did not cause occupational and social impairment with reduced reliability and productivity. After he was laid off from the propane delivery company, the Veteran worked a part-time job as a maintenance worker for the township. In addition, he volunteered as a first responder and firefighter with the fire department, which he reported he had done for more than 30 years. The Veteran reported that he was assistant fire chief, which demonstrates that he had the ability to take on a role with greater responsibility and perform varied and complex job duties juggling the various paid and volunteer positions he held. Furthermore, he was described in the record as friendly, expressive, affable, having good hygiene, independent, and resilient with a normal affect and normal thought processes and content. Lastly, he reported being able to read PTSD novels and informational booklets, and enjoyed reading those materials. Therefore, the evidence demonstrates that his level of social and occupational impairment did not cause reduced reliability and productivity, even when factoring in other relevant criteria outside of the rating code. See Mauerhan at 444. As such, a rating in excess of 30 is not warranted prior to December 26, 2019. Since December 26, 2019 In an August 2020 rating decision, the Veteran’s rating was increased to 70 percent, effective December 26, 2019. Based on the evidence of record, the Board determines that an increased rating in excess of 70 percent since December 26, 2019 is not warranted. Indeed, while the Veteran has occasional symptoms that could support a higher rating, they do not on balance cause total social and occupational impairment. Specifically, the Veteran underwent a VA examination in December 2019. The examiner noted that the Veteran suffers from marked psychological reactions, intrusive distressing memories, flashbacks, and avoidance behaviors in relation to his traumatic stressor. He also reported memory difficulties, persistent negative emotions, markedly diminished interest in activities, irritability, chronic sleep impairment, concentration problems, and hypervigilance. Furthermore, the examiner observed clinical symptoms that include depression, anxiety, suspiciousness, flattened affect, intermittently illogical or obscure speech, difficulty understanding complex commands, low motivation or mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, and impaired impulse control. Despite noting these symptoms, the examiner observed the Veteran as dressed in casual attire and having decent grooming and hygiene. He had a mildly anxious but generally pleasant mood, adequate eye contact, and concise speech with a decent fund of vocabulary. The examiner also noted the Veteran had average intelligence based on history, insight, and interaction style. He denied auditory or visual hallucinations, was not observed responding to internal stimuli, and denied recent suicidal or homicidal ideation. The examiner further noted that his suicidal ideation is infrequent vague thoughts, and he does not have a plan or intent. Additionally, he was an adequate historian, had a normal attention span, and did not require any prompting to stay on task or to change tasks. While the examiner noted severe and various symptoms, based on a review of the evidence of record and an examination of the Veteran, they opined that the Veteran only has occupational and social impairment with reduced reliability and productivity. They also opined that the Veteran’s poor impulse control/reactivity, difficulty understanding complex commands, mild memory problems, low motivation levels, and problems in working effectively with others would impact his occupational functioning in most settings. Consistent with this opinion, the observations of mostly normal mood, thought processes, speech, grooming, and lack of hallucinations or delusions supports that the Veteran does not experience total occupational and social impairment. Because the VA examiner reviewed the evidence of record, examined the Veteran, considered his contentions, and provided a well-reasoned rationale, the Board finds this opinion highly probative. Although the Veteran reported numerous and severe symptoms during the VA examination, there is no evidence beyond the examination that shows the level of impairment contemplated by a 100 percent rating. There are no medical treatment records or statements submitted since December 26, 2019 that demonstrate more severe functioning or symptoms than reported during the VA examination. While the Veteran reported some significant symptoms during his VA examination, such as suicidal ideation, poor impulse control, mild memory difficulties, a tendency to isolate, depressed mood, panic attacks, chronic sleep impairment, paranoia, and hypervigilance, the Board determines that they were most accurately contemplated by the 70 percent rating he currently receives. Of particular note, the symptoms associated with a 100 percent rating are quite severe, requiring total social and occupational impairment, as represented by symptoms such as gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting oneself or others, inability to perform daily activities of living, and memory loss for names of close relatives or one’s own name. It is reasonable to believe that symptoms of a 100 percent rating would be so severe that even a layperson would be readily able to identify the impairment. Here, such severe impairment was not shown. Overall, a holistic view of the Veteran’s concise speech, pleasant mood, and normal attention span without any observed signs of thought disorder, psychosis, hallucinations, or delusions are better characterized by the 70 percent rating he has received since December 26, 2019. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115-117 (Fed. Cir. 2013). Next, the Board considered other relevant rating criteria outside of the rating code in order to determine the level of social and occupational impairment. See Mauerhan at 444. The Veteran reported that his chronic sleep impairment, low motivation and mood, anger, and tendency to isolate make doing activities or being around others difficult. He also reported being suspicious of others, avoiding crowds, and having anxiety and panic attacks. He noted that he socializes less and has some relationship issues with family. Finally, he reported that he has difficulty with memory and understanding complex commands. Despite these reports, the Veteran noted having an okay relationship with his wife and continuing to volunteer as a firefighter and first responder, which he has done for many years. The ability to maintain long-term volunteer opportunities in a position that requires interaction with the public, concentration, memory, and critical thinking skills, as well as the ability to maintain a relationship with his wife, is not consistent with a finding that the Veteran has total occupational and social impairment. In considering the appropriate disability ratings, the Board has also considered the statements from the Veteran that his service-connected psychiatric disorder is worse than it has been rated throughout the period on appeal, including that his disability causes impairments in his ability to engage in or maintain relationships, irritability and angry outbursts, chronic sleep impairment, suicidal ideation, and fatigue and depression that prevent him from engaging in activities. However, the Board finds these statements of limited probative value. While the Veteran, as a lay person, is competent to report symptomatology as it comes to him through his senses, he is not competent to identify the specific level of his service-connected disability according to the appropriate diagnostic code. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2. Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s psychiatric disorder has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated and are highly probative. The Board concludes that the weight of the evidence is against the claim for increased rating in excess of 70 percent since December 1, 2009, and there is no doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is denied. As an additional matter, to the extent a total rating based on individual employability (TDIU) claim may be considered part of this herein appeal based on the Veteran’s claim for a 100 percent rating for psychiatric disability, the Board observes that such a rating was not explicitly sought or inferred. Specifically, the Veteran reported throughout the period on appeal that he retired in 2015 but worked part-time during various periods as a maintenance worker for the township, and that he continues to work as a firefighter, assistant fire chief, and first responder, which he has done for more than 30 years. Therefore, the record does not contain evidence of TDIU, and the issue is not on appeal. See also Rice v. Shinseki, 22 Vet. App. 447 (2009). 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Veltri, Associate Counsel