Citation Nr: 21023336 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-24 264 DATE: April 20, 2021 ORDER A disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to June 4, 2019 is denied. A disability rating in excess of 50 percent for PTSD from June 4, 2019 to March 15, 2020 is denied. A disability rating in excess of 70 percent for PTSD from March 16, 2020 is denied. FINDINGS OF FACT 1. The Veteran served on active duty from May 1986 to February 1993. 2. Prior to June 4, 2019, PTSD was manifested by complaints of anxiety, depressed mood, and sleep impairment; objective findings included normal thought process and fair judgment. 3. From June 4, 2019 to March 16, 2020, PTSD was manifested by subjective complaints of anxiety, sleep impairment, and anger; objective findings include chronic sleep impairment, and nightmares. 4. From March 16, 2020, PTSD has been manifested by subjective complaints of, among other things, depression, anxiety, mild memory loss, and sleep impairment; objective findings included adequate grooming, alert and oriented, normal speech, and flattened affect. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for PTSD prior to June 4, 2019, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2020). 2. The criteria for a rating in excess of 50 percent for PTSD from June 4, 2019 to March 15, 2020, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. § 4.130, DC 9411 (2020). 3. The criteria for a rating in excess of 70 percent for PTSD from March 16, 2020, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. § 4.130, DC 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal was most recently before the Board in January 2020 when it was remanded for additional development. It has now been returned for further appellate action. Increased Rating for PTSD Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. All psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders (“General Rating Formula”). Under the General Rating Formula, a 30 percent rating is warranted for 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 conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, and mild memory loss (i.e. forgetting names, directions, or recent events). A 50 percent rating is warranted under the General Rating Formula for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted under the General Rating Formula for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 as 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), and an inability to establish and maintain effective relationships. A 100 percent rating is warranted under the General Rating Formula 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 the ability to maintain minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Prior to June 4, 2019 If the evidence shows that a veteran experiences symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Prior to June 4, 2019, the Veteran’s PTSD has been rated as 30 percent disabling. However, he contends he is entitled to a higher rating for the entire period on appeal. Turning to the medical evidence, October 2013 VA treatment notes revealed that the Veteran was appropriately groomed and dressed, cooperative, and denied any suicidal or homicidal ideation. He stated that he had worked as a chef for 28 years, at various locations, holding the same job for the past five years. He denied any problems with concentration or completing tasks. He also reported being married for eight years and described his marriage as beautiful. He added that he enjoyed spending time with his brothers, cousins, and a pastor, as well as endorsing hobbies such as racquetball, exercising and time in nature. He was alert and oriented to person, place, and time, without signs of cognitive impairment. While he did state that he had depression issues, with poor to fair judgment, the Veteran’s thought processes were logical and linear, and he was cooperative. He mainly endorsed symptoms of anxiety, worry, irritability, and intrusive thoughts. In April 2014 private treatment notes, he endorsed disturbing thoughts and dreams, isolation, irritability, and trouble sleeping. While he had depression and anxiety, he was cooperative, with normal thought process and content, denying any hallucinations or delusions and suicidal or homicidal ideations. At a May 2014 VA examination, the Veteran reported a fear of large crowds and difficulty in maintaining interpersonal relationships. However, he reported maintaining the same job for the preceding five years. He stated that he kept in contact with his mother, father, and brother, with good relationships. He also remained married to his wife and noted that they had little arguments. He stated that he had flashbacks, anger, and irritability, and that he had been seen by a community psychologist. He denied any suicidal or homicidal ideations, but endorsed feelings of anxiety and troubled sleep. The examiner observed him to be polite, cooperative, with good grooming, normal speech, and full orientation to person, place and time. His short and long-term memory were also noted to be intact. The examiner noted a sense of exaggeration in his symptoms, especially when compared to recent treatment notes. He was competent to manage his financial affairs. August 2014 private treatment notes revealed similar findings, with normal speech, cooperative mood, with normal thought process and content. The Veteran again endorsed feelings of depression, anxiety and hyperarousal. He denied any auditory, visual, or tactile hallucinations, with obsessive thoughts about being safe. He denied any suicidal or homicidal thought or behavior, as well as paranoia. He remained married, and employed at the same location he was for several years. Occasional intrusive thoughts were reported, as well as fear of large crowds, and reliving of traumatic events. At an April 2015 VA examination, he endorsed symptoms of depression, anxiety, and suspiciousness. He was observed to be generally normal, with restlessness and tension, with an anxious mood. He complained of mild attention problems. He was still married, for almost ten years now, and reported being active, with his wife, in their church community and counseling. He described his marriage as strong and supportive, despite internal problems. He also reported consistent contact with his extended family, and parents. He also remained at the same job for approximately seven years. Regardless, he endorsed sleep difficulty, intrusive thoughts, and feelings of guilt and regret. He was observed to be cooperative, friendly, alert and oriented, with normal attention, concentration, and thought process and content. He denied any suicidal or homicidal ideations, as well as hallucinations or delusions. His insight and judgment were noted to be normal. The examiner opined that the Veteran’s PTSD manifested as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. In November 2015 private treatment notes, the Veteran reported that he dropped out of treatment a year prior. He stated that he felt down and was in marriage therapy, which had been working well. He endorsed disturbing memories and dreams with fragmented sleep. He also noted that he felt isolated from others and was emotionally numb. He was observed to be cooperative, although anxious and restless. His speech, thought process, and content were normal, and he denied any hallucinations or delusions. He reported memory issues, but the examiner noted that he was alert and oriented. May 2016 private treatment notes revealed continued anxiety and hypervigilance, with flashbacks. He reported better sleep, but that his depression remained the same. He continued to work as a cook, and remained married. He was observed to be anxious and restless, but cooperative, with normal speech thought process and content. He denied any tactile, visual or auditory hallucinations, as well as any suicidal or homicidal thought. He was alert and oriented although continuing to complain of memory issues. November 2016 VA private notes revealed similar findings. Specifically, the Veteran continued to show signs of depression, but he continued to deny any suicidal or homicidal ideations. He described his mood as good and stable in October 2017 and May 2019 VA treatment notes. While clinical records were somewhat sparse after May 2016, there continued to be notations of stable and good moods which were properly managed during that. Importantly, there was no evidence suggesting a higher rating was warranted at that time. Overall, the weight of the medical evidence shows that prior to June 2019, the Veteran was able to perform work as a temporary employee and his symptoms of PTSD were stable. His thought process was linear, and he did not have suicidal or homicidal thoughts. Further, he showed fair insight and judgment and there was no evidence of psychosis. While he experienced depressed mood and anxiety, at times, the evidence does not typify the criteria required for a rating of 50 percent. As such, the overall evidence does not support a higher rating prior to June 2019. From June 4, 2019 to March 6, 2020 At a June 2019 VA examination, the Veteran endorsed symptoms of intrusive trauma thoughts, avoidance reactions, hyperarousal, hypervigilance, poor sleep, trouble concentrating, and depression. He had poor energy levels and decreased motivation. He denied any suicidal or homicidal ideations. The examiner observed him to be cooperative, appropriately groomed and dressed. His speech was within normal limits, and was oriented to all spheres. He indicated that his mood was bad, but there was no psychotic mood noted, and his thought process and content were intact. His insight and judgment were fair, and the examiner found him capable of managing his financial affairs. The examiner opined that his PTSD manifested as occupational and social impairment with reduced reliability and productivity. Private treatment notes from June to September 2019 revealed that the Veteran was experiencing stress at his job and in the relationship with his wife. However, he continued to be employed at the same location for several years, and remained married to his wife of many years. His speech, thought process, and thought content were all observed to be appropriate and normal. He denied any suicidal or homicidal ideations, as well as delusions and hallucinations. He reported memory issues, but was again found to be alert and oriented to person, place and time. However, he reported isolation, and not going anywhere unless he had to. He endorsed mainly symptoms of depression, anxiety, feeling tired all the time, and difficulty with motivation. Private treatment notes from December 2019 revealed ongoing marital issues. He remained employed. Once again, his speech, thought process and content were all normal. He continued to deny suicidal or homicidal thoughts, as well as delusions and hallucinations. He was alert and oriented to all spheres despite complaints of memory issues. In sum, the evidence does not support an increased rating for this time period. From June 2019 to March 2020, symptoms have included depressed mood, sleep impairment, and anxiety with marital issues. The evidence does not show illogical thoughts, impaired judgment, suicidal thoughts, or psychosis. Further, the Veteran has been able to maintain employment throughout the relevant period on appeal. The record shows that symptoms have been controlled and did not increase in severity. As such, the overall evidence does not support a rating in excess of 50 percent for this time period. From March 6, 2020 At March 2020 VA examination, the Veteran complained of continuous depression, anxiety, suspiciousness, isolation and difficulty interacting with others, and panic attacks each week. He also reported sleep impairment and mild memory loss. He reported suicidal ideation and impaired impulse control. He reported relationships with his father, brother, sister and mother. He reported that he was still married, at this point for almost 15 years, and continued to be employed at the same location for over eleven years. He denied any relevant legal and behavioral history with the exception of a DUI charge over twenty years prior. The examiner observed him to be oriented to person, place and time, with adequate grooming. The examiner noted that although suicidal ideation was endorsed, any plan was denied. He was also found capable of managing his financial affairs. The examiner opined that his PTSD manifested as occupational and social impairment with reduced reliability and productivity. March 2020 private treatment notes revealed similarly that he was alert and oriented to all spheres, with normal thought process and content. He denied any delusions or hallucinations, and denied any suicidal or homicidal thoughts. He did, however, endorse memory issues. June 2020 private treatment notes revealed that the Veteran was managing his daily activities. He remained married and employed. Once again, he was cooperative, with normal speech, thought process and content. He denied any auditory, visual or tactile hallucinations or delusions. He denied any suicidal or homicidal thoughts, and reported a problem with his memory. He was alert and oriented to all spheres. Based on the above, a 100 percent rating for PTSD is not warranted from March 6, 2020. In this regard, the weight of the evidence reflects that the Veteran experienced no hallucinations or delusions, mostly no suicidal thoughts or plans. While he did endorse suicidal ideations at his March 2020 VA examination, the Board notes that his evidence is not entirely credible as he repeatedly denied such ideations prior to, at the same time as, and following the examination. Additionally, the single endorsement of suicidal ideation came without plan or intent. However, his thought process was consistently linear, logical, organized, and goal directed, his hygiene was appropriate, and his speech was normal, clear, and fluent. Additionally, clinicians found that his recent and remote memory were intact and that he was oriented to person, place, and time. He was also consistently adequately groomed and cooperative. He maintained a marriage of almost fifteen years, as well as employment at the same location for over eleven years. He also maintained relationships with his family even when they lived very far away. He was also consistently deemed able to manage his financial affairs. He did not exhibit any obsessional rituals or behaviors, or psychosis. Thus, the available medical evidence does not show total occupational and social impairment which would warrant a 100 percent rating from March 6, 2020. In so finding, the Board has also considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s PTSD 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 and other clinical evidence) directly address the criteria under which this disability was evaluated. Moreover, as the examiners had the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. Given the above, while the Board acknowledges that the Veteran’s PTSD resulted in significant occupational and social impairment, the Board finds that his PTSD did not result in total occupational and social impairment from March 6, 2020. Thus, a 100 percent rating is not warranted at any time from March 6, 2020. (Continued on the next page)   Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Emily Tamlyn Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yacoub, 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.