Citation Nr: 21014753 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-01 744 DATE: March 15, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to November 25, 2019 is denied. Entitlement to an initial compensable rating for residuals of prostate cancer from January 13, 2011 to June 2, 2014 is denied. FINDINGS OF FACT 1. Prior to November 25, 2019, the severity, frequency, and duration of the Veteran’s PTSD symptoms were productive of occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking and mood, but was not manifested by total social and occupational impairment. 2. For the period from January 13, 2011 to June 2, 2014, the Veteran’s residuals of prostate cancer did not manifest to a compensable degree. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 70 percent for PTSD prior to November 25, 2019 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to an initial compensable rating for residuals of prostate cancer from January 12, 2011 to June 3, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1971 to May 1976. This matter was initially before the Board in September 2018, where it was remanded for additional development. Specifically, the Board determined that the Veteran should be afforded VA examinations to assess the current severity of his service-connected prostate disability and PTSD. The matter returned to the Board in February 2020, where the Board denied an initial rating in excess of 70 percent for PTSD prior to November 25, 2019 and granted a 100 percent rating for PTSD from November 25, 2019. Additionally, the Board denied an initial compensable rating for residuals of prostate cancer from January 13, 2011 to June 2, 2014, granted a rating of 40 percent for residuals of prostate cancer from June 3, 2014 to January 8, 2016, and granted a rating of 60 percent for residuals of prostate cancer from January 9, 2016. The Veteran timely appealed the claim to the U.S. Court of Appeals for Veterans Claims (CAVC or Court). In a joint motion for partial remand, the Court set aside and remanded the Veteran’s initial rating claim in excess of 70 percent for PTSD prior to November 25, 2019 and his initial compensable rating for residuals of prostate cancer from January 13, 2011 to June 3, 2014. The Court determined that the Board did not provide sufficient reasons and bases for the decision. However, the Veteran’s grant of staged ratings for his PTSD and prostate disability remained undisturbed and will not be further discussed by the Board. The case has been returned to the Board for further development and adjudication of the issues on appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Entitlement to an initial rating in excess of 70 percent for PTSD prior to November 25, 2019. The Veteran appeals the denial of an increased rating in excess of 70 percent for his service-connected PTSD prior to November 25, 2019. The Veteran asserts that he should be entitled to a 100 percent disability rating. From the period of January 20, 2011 to November 24, 2019, the Veteran’s PTSD was evaluated as 70 percent disabling under 38 C.F.R. § 4.130, Code 9411. All acquired psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders. Under VA’s General Rating Formula, 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: 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 an 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Code 9411. A total schedular rating of 100 percent 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; memory loss for names of close relatives, own occupation, or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran’s psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency must assign a rating 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 moment of the examination. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Indeed, the symptoms listed under §4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating. Mauerhan, 16 Vet. App.at 442. The veteran’s actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) In pertinent part, the Veteran filed a service connection claim for PTSD in January 2011. A May 2013 rating decision granted service connection and assigned an initial rating of 50 percent effective January 12, 2011, the date the Veteran’s service connection claim was received by VA. In September 2018, the Board remanded the claim for further development. A December 2019 rating decision granted an increased rating of 70 percent effective the date of his January 12, 2011 claim. The Veteran was afforded a VA examination in April 2013. The Veteran was diagnosed with PTSD with symptoms of depression. The Veteran reported that he had been married for 27 years but has been irritable with his wife throughout the marriage and had regular angry outbursts. He added that “the little things set me off.” He also reported that he had a few friends but spends most of the day to himself. The examiner found that the Veteran had occupational and social impairment with 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 conservation. The examiner also stated that the Veteran’s social and occupational impairment is solely attributable to his PTSD. The Veteran’s symptoms consist of the following: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, flattened affect, disturbance of motivation and mood, suicidal ideation, and impair impulse control, such as unprovoked irritability with periods of violence. The Veteran had other symptoms attributable to his PTSD which consist of depression with reduced energy and feelings of hopelessness. While the examiner indicated that the Veteran’s symptoms included suicidal ideation and impaired impulse control, the VA examiner did not indicate that the Veteran’s PTSD resulted in total occupational and social functioning. Additional pertinent evidence includes VA treatment records and lay statements from the Veteran. In a June 2014 notice of disagreement, the Veteran stated that his PTSD had worsened, and that he had considered leaving his wife in order to not harm her. He also stated that he is becoming more withdrawn and it is getting harder for him to keep a “level head.” In a May 2015 PTSD screening, his screening was negative. He denied having nightmares, avoiding situations, being constantly on guard, watchful, or easily distracted, and denied feeling numb/detached from others, activities, or surroundings. In a June 2015 clinic note, a treating therapist reporting the findings of the Veteran’s May 2015 PTSD/depression evaluation, stated that he was “tearful on exam.” He reported a depressed mood and “having increased vivid dreams.” While the Veteran stated that he did not currently have homicidal and suicidal ideation, he planned on buying a gun, as he had no firearm in his house now. In a January 2016 Form 9, the Veteran stated that he finds himself “more depressed over a longer period of time.” He can feel his depression become “deeper” and he withdraws more from everyone. He added, “I think more of self-destruction more than I ever had.” In November 2019, the Veteran was afforded an additional VA examination pursuant to the Board’s September 2018 remand. The Veteran denied receiving any mental health treatment. He reported that he separated from his wife due to his PTSD and stayed by himself. The Veteran’s symptoms consist of the following: depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, impaired impulse control, such as unprovoked irritability with periods of violence, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner reported that the Veteran displayed inappropriate social functioning. The examiner indicated that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. While the results of the April 2019 and November 2019 VA examination, as well as the mental status evaluations in the VA treatment records do not indicate that the Veteran has experienced all of the symptoms associated with a 100 percent rating for PTSD for the entire period on appeal, the Veteran was nonetheless awarded a 100 percent disabling rating effective November 25, 2019. However, the Board cannot factually ascertain that prior to November 25, 2019, the Veteran’s symptoms meet the criteria for a 100 percent rating. Again, to warrant a rating of 100 percent the Veteran must demonstrate 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 case, there has been no record of medical or lay evidence demonstrating that prior to November 25, 2019, the Veteran experienced psychosis and gross impairment in thought processes or communication. Additionally, there is no indication of disorientation, or grossly inappropriate behavior, and the Veteran has not reported memory loss of the severity contemplated by a 100 percent rating. During the VA examinations, the Veteran’s speech has maintained a normal rhythm/rate at mental health visits and during examinations, despite a chronically depressed mood. The Board acknowledges that the record reflects a history of suicidal thought. Specifically, the 2013 VA examiner noted the Veteran “endorsed suicidal thoughts…consist[ing] of impulsive ideas to drive off a bridge or jump out of a window.” Suicidal ideation is recognized as being supportive of a 70 percent disability rating, although if it is persistent might be supportive a 100 percent rating which contemplates peristent danger of hurting self. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the Board does not find the severity, frequency, and duration of any suicidal ideation has risen to the level contemplated by the 100 percent rating. The Veteran has consistently denied any intent, attempt, or planning of self-harm, and no treatment provider has found him to be at any risk of suicide. Similarly, while the Veteran has expressed anger and irritability towards others, with a history of physical altercations, no treatment provider has indicated that he has expressed actual homicidal thinking. Thus, the Board does not find that the Veteran’s thought processes amount to a persistent danger to himself or others. The Board also notes that the Veteran’s reports of impaired impulse control during the period on appeal are contemplated by the 70 percent rating assigned. The Board considered the Veteran’s overall lay statement about his mental health symptoms, including those made to his medical providers and VA examiners, and find the statements probative, but that they do not support a rating higher than 70 percent prior to November 25, 2019. While the Veteran is competent to report his symptoms, the Board notes that he is not competent to state whether his symptoms warrant a specific rating under the schedule for rating disabilities. See Buchanan v. Nicholson, 451 F.3d 1376-77 (Fed. Cir. 2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To the extent that the Veteran believes that a higher rating is warranted for his PTSD prior to November 25, 2019, his contention is outweighed by the more probative medical evidence of record, including the Veteran’s mental health assessment of his symptoms and functioning. While the Board recognizes the difficulties that the Veteran’s symptoms have placed on both himself and his family, the VA examination and medical records are persuasive, as they provide expertise opinions based on their training and clinical experience to determine the frequency, severity, and duration of the Veteran’s PTSD symptoms. Therefore, the preponderance of the evidence is against a finding that those symptoms have amounted to total occupational and social impairment as to warrant a rating of 100 percent during the period in question. In sum, a 70 percent initial disability rating adequately contemplates the Veteran’s PTSD symptomatology as evidenced by the probative medical evidence of record prior to November 25, 2019. As the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable, and the Board must deny the claim for a rating in excess of 70 percent. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an initial compensable rating for residuals of prostate cancer from January 12, 2011 to June 3, 2014. The Veteran’s residuals of prostate cancer are rated under Diagnostic Code 7528. Following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. In this case, the Veteran was diagnosed with prostate cancer on or about November 2010. The Veteran filed a service connection claim for prostate cancer in January 2011. He underwent a prostatectomy in January 2011. A May 2013 rating decision granted an initial rating of 100 percent and reduced the Veteran’s rating to a noncompensable rating effective June 24, 2012, which was more than two years after surgical treatment for his prostate cancer. The claims folder does not indicate a reoccurrence of the cancer. Therefore, the regulations direct that the condition should be rated on residuals as voiding dysfunction or renal dysfunction (38 C.F.R. § 4.115a), whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. Here, as medical evidence of record does not show the Veteran has been diagnosed with renal dysfunction or obstructive voiding, a rating under either voiding dysfunction or urinary frequency is more appropriate. Under voiding dysfunction, the particular condition will be rated as urine leakage, frequency, or obstructed voiding. A 20 percent rating is assigned when absorbent materials must be change less than two times per day. A 40 percent rating is assigned when absorbent materials must be changed two to four times per day. A 60 percent rating is assigned when either an appliance is required or when absorbent materials must be changed more than four times per day. 38 C.F.R. § 4.115a. Under urinary frequency, a 10 percent rating is assigned for daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent rating is assigned for daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 40 percent rating is assigned for daytime voiding interval less than one hour, or awakening to void five or more times per night. Id. Turning to the evidence, the Veteran was afforded a VA examination in June 2012. He denied having any urinary symptoms or abdominal pain. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting a physical examination, the examiner indicated that the Veteran did not have voiding dysfunction or renal dysfunction. The examiner indicated that the Veteran did not require the use of an appliance. In a June 3, 2014 notice of disagreement (NOD), the Veteran stated that his urinary frequency has worsened this past year. He Veteran reported that for the past 5 months, he began to wear pads and needed to change absorbent materials three to four times per day. As such, the Veteran was afforded a VA examination in November 2015. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting a physical examination, the examiner indicated that, while the Veteran had voiding dysfunction that caused urine leakage, he did not require the wearing of absorbent material. The examiner indicated that the Veteran had daytime voiding intervals between one and two hours and nighttime awaking to void five or more times. Based on the Veteran’s NOD and the subsequent VA examination, the Veteran was assigned his 40 percent rating effective June 3, 2014. Similarly, in a January 9, 2016 VA Form 9, the Veteran reported that he now required the use of pads and changed his absorbent material more than four times per day. As such, the Veteran was afforded another VA examination in November 2019. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting a physical examination, the examiner again indicated that, while the Veteran had voiding dysfunction, he did not require the wearing of absorbent material. The examiner indicated that the Veteran had daytime voiding intervals between two and three hours and nighttime awaking to void three or four times. The examiner indicated that the Veteran did not have any renal dysfunction. Based on the Veteran’s VA Form 9 and the subsequent VA examination, the Veteran was assigned his 60 percent rating effective January 9, 2016. However, upon review of the evidence of record for the period on appeal prior to the June 2014 NOD, the Board finds that the Veteran’s residuals of prostate cancer do not warrant a compensable rating. The June 2012 VA examiner who examined the Veteran following his prostatectomy noted that his residuals did not result in any urinary symptoms. The record does not establish that it was factually ascertainable that the Veteran’s residuals for prostate cancer symptoms increased prior to June 3, 2014, as his medical records are silent for showing a worsening of his symptoms. The only evidence supportive of a compensable rating prior to June 3, 2014 is the Veteran’s own statements. The Board acknowledges the Veteran’s assertions that his prostate disability is more severe than evaluated, and he is competent to report his symptoms and has presented credible testimony. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to determine the severity of his prostate disability, as it is medically complex and outside the scope of a lay person. Jandreau, 492 F.3d at 1372. The Board finds that the June 3, 2014 lay statement from the Veteran regarding his voiding symptoms, and the November 2015 examiner’s confirmation of those symptoms, indicates that is the earliest factually ascertainable time where the Veteran’s prostate condition warranted a compensable rating. In sum, a higher rating is not appropriate prior to June 3, 2014 because the evidence does not show that the Veteran experienced voiding dysfunction, renal dysfunction, voiding obstruction, or infection during the period in question. As the preponderance of the evidence is against this finding, the claim must be denied. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adeleke, Tomi 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.