Citation Nr: 21015748 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-34 979 DATE: March 18, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with associated depression is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for residuals of stroke is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The Veteran's PTSD with associated depression has been productive of occupational and social impairment with deficiencies in work, family relationships, thinking and mood; total occupational and social impairment has not been demonstrated. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD with associated depression have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to August 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to a rating in excess of 70 percent for PTSD with associated depression The Veteran contends that he is entitled to an increased rating for his service-connected psychiatric disorder, diagnosed as PTSD with associated depression. Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s PTSD with associated depression is rated as 70 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. PTSD is rated under the General Rating Formula for evaluating psychiatric disabilities other than eating disorders. Under the General Rating Formula, a 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather 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 section “§ 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.” To the extent that the medical evidence reflects diagnoses of other psychiatric disorders, where it is not possible to distinguish the effects of nonservice-connected conditions from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran’s service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Turning to the evidence, private treatment records surround the Veteran’s September 2015 stroke reflects that the Veteran had experienced depression anxiety that were present prior to the stroke. He indicated that he had difficulty finding work and admitted to difficulties in the past because he was “hard to get along with.” On mental status examination in September 2015, the Veteran had normal speech and thought process. Mood was anxious and depressed, and affect was constricted. He denied delusions and hallucinations as well as suicidal or homicidal ideation. Insight and judgment were fair. No gross impairments in memory or concentration were observed. He was assessed with adjustment disorder with depressed mood and anxious features, as well as a history of PTSD. A second report from the stroke hospitalization reflects that the Veteran reported that he had always struggled with anger, poor frustration, tolerance, negative thinking, and ruminative thoughts that were catastrophic in nature. Cognitively, he complained of new problems with memory and thought processing since that stroke, though he was able to recall the events leading up to the stroke. On VA examination in November 2015, the Veteran presented for examination accompanied by his third wife, with whom he had been married for over 20 years. He reported that his marital relationship had been better since suffering a stroke in September 2015. He indicated that he still had considerable difficulties with his anger and emotion dyscontrol. At his last evaluation in 2014, the Veteran reported that he did not have a lot of friends, but this time he reported he had a lot of good friends; his wife indicated that his friends had rallied around him after his stroke. The Veteran reported that he was currently working on writing a book. He last worked in academia for a university teaching online courses for 3 months over the summer, and previously taught two adjunct courses in the spring. He stated that he was not currently working because he could not drive due to vision loss from his stroke. The examiner indicated that it was apparent from the Veteran’s history that he had much difficulty maintaining employment because of interpersonal difficulties. The examiner noted that the following symptoms applied to the Veteran’s psychiatric diagnoses: anxiety, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. On mental status examination, the Veteran presented as adequately groomed and in casual attire. Psychomotor activity was within normal limits. He was alert and responsive during the evaluation, and oriented to time, person, and place. He was cooperative throughout the interview. Eye contact was appropriate, and affect was bright and euthymic mood. Speech was fluent, spontaneous, and goal-directed. Rate, rhythm, and volume of speech were within normal limits. Thought processes were coherent. He denied any perceptual disturbances and did not exhibit any evidence of an underlying thought disorder. Attention and concentration were adequate. Thinking was abstract. The Veteran denied any suicidal or homicidal thoughts or plans. Judgment and insight were adequate. The examiner diagnosed PTSD and found the disability to be productive of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking and/or mood. A December 2015 VA psychiatry note reflects that the Veteran’s depression and PTSD symptoms were under control. He was still dealing with the sequelae of a stroke such as vision and memory problems. On VA treatment in March 2016, the Veteran presented for status updated upon return to treatment following the stroke. He believed that his PSD symptoms had worsened, but that he recovered more quickly from cues. He was more depressed secondary to the stroke and felt claustrophobic “trapped inside his brain.” He could not think clearly, was poorly focused and had difficulty maintaining attention. He reported poor memory and angry responses mostly triggered about his wife complaining about something he felt that he could not do anything about. He indicated that he was depressed and lacked motivation. Mental status examination revealed that the Veteran was alert and oriented, with cooperative attitude and good eye contact. Attention was within normal limits with a blunted affect and depressed mood. Speech and thought content were coherent with no indication of hallucinations/delusions and average insight and judgment. Memory was within normal limits. On VA treatment in August 2016, the Veteran reported that his mood was “up and down” and that his PTSD was still present in the form of anger issues, irritability, and a short fuse. Sleep, appetite, energy level, and concentration were fair. He denied any feelings of hopeless, helplessness, or any active suicidal or homicidal ideas or plans. On VA examination in July 2017, the Veteran reported that he was still married and had not worked since the 2015 stroke. He indicated that he was working on a book, which he hoped would help him with his memory and concentration issues. The examiner noted that the following symptoms applied to the Veteran’s diagnoses: depressed mood, anxiety, mild memory loss, such as forgetting names, directions, or recent events, impaired abstract thinking, and disturbances of motivation and mood. He also observed that the Veteran was calm and compliant. Attention was good and speech was well-formed and appropriate. Eye contact was good. The examiner diagnosed PTSD, and noted that the Veteran also had depression that was subsumed as part of PTSD. The examiner noted that the Veteran had a stroke in 2015 and had problems with memory and concentration since that time. The examiner found the Veteran’s psychiatric disability to be productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and mood. With respect to occupational functioning, the examiner indicated that the Veteran had difficulty attending to, or is easily distracted from, the task at hand. He has difficulty maintaining concentration and focus on work over a period of time, and tended to skip from one task to another without completing the prior task. He had significant difficulty accepting supervision or receiving instructions without becoming angry (authority conflict). He also had significant difficulty functioning around other people, had difficulty functioning as a team member, and felt uncomfortable around others. An August 2017 VA consult report reflects that the Veteran was referred for assessment of his cognitive skills following the stroke in 2015. He noted that his concentration and focus remained problematic and that he had stopped writing 2 of the 3 book he was in the process of writing as a result of his difficulties. He “forgot everything” and had post-stroke difficulty recognizing people’s faces. The Veteran’s wife also reported memory changes, lack of focus, and confusion over simple concepts, but these difficulties were not consistent. There was also a decline in self-care and he needed reminders to shower, brush teeth, and change clothes. She also reported that he had a “hair-trigger temper” that was perhaps worse because of frustration. She noted that prior to the stroke he was at times a difficult person with a bad temper, never got along with his superiors, and lost many teaching positions because of his inability to get along with department heads. An August 2017 VA psychology note reflects that the Veteran reported difficulties with his wife, indicating that they were both depressed and were having communication difficulties. He indicated that he experienced intrusive thoughts and problems with sleep. His mood was dysthymic and this was mostly due to “situational factors.” The examiner noted that the Veteran was previously seen in 2013 and found to have some decline from his superior level of functioning on specific tasks. Difficulties were noted with attentional disruptions and memory limitations felt to be related to interference from PTSD symptoms, depression, and anxiety. Results of the current testing were compared, and there was relative decline in information processing skills, language, and attention, while memory skills were largely unchanged and most cognitive skills remained in the average to above average and even superior ranges. Marked difficulties in sustained attention and inattention was felt most consistent with a probable vascular neurocognitive disorder. A December 2017 VA psychology note reflects that the Veteran was alert, oriented, and adequately groomed. His attitude was cooperative and attention and motor activity were within normal limits. Affect was blunted and mood was depressed. Speech/thoughts were coherent with no indication of hallucinations or delusions. Insights and judgment were average/good and memory was within normal limits. The Veteran reported that he was doing fairly well and was even considering termination of treatment. During the Veteran’s January 2021 Board hearing, the Veteran testified that he had memory issues, bizarre dreams, and a bad temper. He occasional lost track of the day and time. Sometimes he saw friends and forgot their names; he seldom forgot names of relatives, but occasionally forgot the names of some extended family members. He reported that he had been married for 25 years and got along well with his wife, though he expressed that his PTSD caused a role in his previous divorces. He also reported good relationships with his adult children. In consideration of the evidence above, the Board finds that the Veteran’s service-connected PTSD with associated is not shown to have met the criteria for a rating in excess of 70 percent. As noted, a 100 percent rating requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Significantly, VA and private records and examination demonstrate symptoms consistent with a 70 percent rating, including impaired impulse control, depression, difficulty in adapting to stressful circumstances, relationship difficulties, and panic attacks, the probative evidence does not show such symptoms as delusions, hallucinations, disorientation to time or place, severe memory loss, gross impairment in thought process, persistent danger to self or others, or grossly inappropriate behavior. As to occupational functioning, the record indicates that the Veteran stopped working after his stroke. Although he experienced difficulty maintaining teaching positions due to interpersonal difficulties, he was able to obtain other jobs prior to the stroke. The Veteran’s 70 percent rating accounts for occupational impairment such as difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. Moreover, these findings are consistent with the VA examinations of record, which determined that the Veteran’s PTSD with associated depression was productive of occupational and social impairment with deficiencies in most areas, but not total occupational impairment. Although the Veteran has reported that he has anger difficulties and can lose his temper easily, a history of violence toward others has been denied, and persistent danger of hurting others is not indicated. Similarly, he has consistently denied suicidal ideation. Therefore, persistent danger to self is also not demonstrated. With respect to social functioning, the record reflect that the Veteran is married and reported good relationships with his wife and children, although he has expressed some ups and downs in this marriage. The Veteran has also reported that he has some friendships. Therefore, because total social impairment is not demonstrated, a 100 percent rating is not warranted. In reaching this determination, the Board observes treatment records and hearing testimony demonstrating significant memory and concentration problems. It appears that some, if not most, of this symptomatology is residual of the Veteran’s 2015 stroke. However, even if the Board were to accept these symptoms solely as a manifestation of the service-connected psychiatric disorder, the Board still finds that the criteria for a 100 percent rating are not more nearly approximated. See Mittleider, 11 Vet. App. at 181. While the Veteran has noted that he occasional forgets the day or time or names for certain friends and family members, disorientation to time or place or memory loss of names of close relatives, own occupation, or own name—or symptoms of similar severity—is not demonstrated. Therefore, the Board finds that they do not provide a basis to award a 100 percent rating. In sum, the record does not support of a finding of both occupational and social impairment which is total in degree. In so finding, the Board has considered the Veteran's statements regarding the severity of his psychiatric symptoms. Certainly, as a lay person, the Veteran is competent to attest to the symptoms that he experiences. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Generally, he has been credible with his testimony. However, as it pertains to the specific criteria for a 100 percent schedular rating under Diagnostic Code 9411, the totality of the lay and medical evidence-when considering the type, severity, and frequency of symptoms-weighs against a finding of "total" occupational and social impairment, or a level of disability more nearly approximating "total" occupational and social impairment. Regardless, with respect the overall severity of his PTSD with associated depression, the Board finds the medical impressions and opinions to be far more probative of the degree of impairment than the lay statements as it pertains to the extent of the overall psychological, occupational and social impairment due to his service-connected psychiatric disorder. Overall, the Veteran has not demonstrated symptoms consistent with or approximating the general level of impairment warranting a 100 percent evaluation or akin to the symptoms as found in the rating criteria. Mauerhan, supra. Accordingly, a rating in excess of 70 percent for PTSD with associated depression is denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. & 2. Entitlement to service connection for hypertension and residuals of stroke The Veteran contends that service connection for hypertension and residuals of stroke is warranted, as he believes that these disabilities are secondary to his service-connected PTSD with associated depression. Service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b). The Veteran was afforded VA examinations in November 2015 to determine the nature and etiology of the claimed hypertension and stroke residuals. That examiner determined that neither disability was proximately due to or the results of the Veteran’s service-connected PTSD, noting that there was no evidence in any large clinical trials that PTSD caused hypertension or stroke. The examiner provided limited rationale for the conclusions reached, and also failed to address whether either disability was aggravated by the service-connected PTSD. Moreover, since that examination, the Veteran has provided additional research and articles discussing a potential relationship between the claimed disabilities and PTSD which the examiner did not consider. Once VA undertakes to provide an examination, it is obligated to ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Given the foregoing, remand is warranted to provide the Veteran an additional examination with fully-stated rationale consideration of all of the evidence of record. 3. Entitlement to a TDIU prior to March 24, 2017 In September 2017, the RO granted entitlement to a TDIU, effective March 24, 2017. However, as the Veteran's TDIU claim was raised during the course of the appeal for increased rating for PTSD with associated depression, and is therefore part-and-parcel of that claim. The award of a TDIU does not cover the entire period on appeal pertaining to PTSD with associated depression, which stems from an October 2015 claim. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 356 (2018); Payne v. Wilkie, 31 Vet. App. 373 (2019). Accordingly, this matter is also before the Board. However, given that the requested development above may impact the claim for entitlement to a TDIU, the Board will defer adjudication and remand this matter as well. The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder outstanding treatment records, to specifically include updated VA treatment records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed hypertension and stroke residuals. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension and stroke, to include residuals thereof 1) had their onset in service or is otherwise medically related to service; or 2) was caused by or aggravated (increased in severity beyond the natural progress of the condition) by the Veteran's PTSD with associated depression. The examiner is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner is also requested to specifically consider and address the medical articles submitted by the Veteran discussing potential relationship between the service-connected psychiatric disorder and the claimed hypertension and stroke residuals. The examiner should set forth all examination findings, together with the complete rationale for the conclusions reached. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. E. Wilkerson, 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.