Citation Nr: 21024556 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 19-13 601 DATE: April 23, 2021 ORDER Entitlement to an initial rating in excess of 50 percent prior to February 22, 2019 for posttraumatic stress disorder (PTSD), to include major depressive disorder and unspecified anxiety disorder, is denied. Entitlement to an increased rating in excess of 70 percent from February 22, 2019 for PTSD is dismissed. Entitlement to service connection for hypertension is dismissed. REMANDED Service connection for hepatitis C is remanded. FINDINGS OF FACT 1. For the initial appeal period prior to February 22, 2019, the Veteran’s PTSD, to include major depressive disorder and unspecified anxiety disorder, manifested as no worse than occupational and social impairment with reduced reliability and productivity. 2. VA received a signed statement from the Veteran’s representative in February 2021 expressing his desire to withdraw the claims for an increased rating in excess of 70 percent for the PTSD from February 22, 2019 and service connection for hypertension. CONCLUSIONS OF LAW 1. For the appeal period prior to February 22, 2019, the criteria for an initial rating in excess of 50 percent for the PTSD, to include major depressive disorder and unspecified anxiety disorder, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code 9411. 2. The criteria to withdraw the claim for entitlement for an increased rating in excess of 70 percent from February 22, 2019 for PTSD, to include major depressive disorder and unspecified anxiety disorder, have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria to withdraw the claim for service connection for hypertension have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the Army from January 1968 to January 1970. In March 2019, the regional office (RO) awarded an increased rating of 70 percent, effective February 22, 2019, for PTSD. However, as higher ratings are available for PTSD, before and after February 22, 2019, and as the Veteran is presumed to seek the maximum available benefit for a disability the claims for an increased rating for PTSD is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran testified before the undersigned in a June 2020 hearing. A transcript of the hearing has been associated with the record. The Board last remanded the claims for additional adjudication in October 2020. Subsequently, the RO awarded an increased rating of 50 percent for PTSD for the period from November 1, 2010 to February 22, 2019, in a January 2021 rating decision. Again, the Veteran is presumed to seek the maximum available benefit for a disability and thus, the claims for an increased rating for PTSD are still considered on appeal. AB, 6 Vet. App. at 38. The Veteran was issued a supplemental statement of the case (SSOC) in January 2021 addressing each staged rating of PTSD; and the service connection claims on appeal for hypertension and hepatitis C. In February 2021, the Veteran’s representative submitted a letter in response to the January 2021 SSOC stating that the Veteran wished to continue the claims of increased ratings for PTSD prior to February 22, 2019 and service connection for hepatitis C. Therefore, as the representative showed that the Veteran clearly desired to terminate the claims for an increased rating in excess of 70 percent for PTSD from February 22, 2019 and service connection for hypertension, and the requirements of a written withdrawal have been met, the Board does not have jurisdiction to review these appeal and dismissals for the increased rating for PTSD from February 22, 2019 and service connection for hypertension are appropriate. 38 U.S.C. § 7105(d); 38 C.F.R. §§ 20.101, 20.202. As the Veteran/his representative has withdrawn these appeals, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the noted issues on appeal and they are dismissed. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations include: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity. 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When determining the appropriate disability evaluation, the Board must consider a veteran’s symptoms and how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to be an exhaustive list. Thus, the Board need not find the presence of all or most of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). However, a veteran only qualifies for a given disability rating by demonstrating the specific symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. All ratings in the General Rating Formula are associated with objectively observable symptoms, and the plain language of the regulation clearly requires a veteran’s impairment to be “due to” those symptoms. Vazquez-Claudio, 713 F.3d at 118. Under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in her favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Entitlement to an initial rating in excess of 50 percent for PTSD, to include major depressive disorder and unspecified anxiety disorder The Veteran’s PTSD with major depressive disorder and anxiety disorder has been rated as an initial 50 percent disabling prior to February 22, 2019 pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, an evaluation of 50 percent is not warranted unless there is reduced reliability and productivity due to such symptoms 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; difficulty in establishing and maintaining effective work and social relationships. Id. 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 that 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 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. Id. A 100 percent rating 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. Turning to the evidence, VA medical records demonstrate that the Veteran has complaints of and sought treatment for his PTSD, to include major depressive disorder and unspecific anxiety disorder. His mental status evaluations and other clinical impressions during his PTSD treatment consistently revealed normal orientation and consciousness, appearance and grooming, speech, language, thought process and association, thought content, insight, judgment, and fund of knowledge. For most of the period on appeal, the Veteran reported having good relationships with his wife, two adult children, and grandchildren. He repeatedly described his family as his support system and protective factor. He was also employed full-time with the Maryland State Lottery until retiring, after which, he began volunteering with VA. The Veteran’s wife submitted a lay statement in January 2011 describing her husband as, in the past, emotionally withdrawn towards her and their son; experiencing frequent employment terminations because of his past substance abuse; struggling with depression which led to more anxiety; and hypervigilant behavior and nightmares continuing to impair his sleep. She added that the Veteran would wake up screaming from his nightmares, and he would stay up and pace the floors as if he were still on active duty and on guard. Notably, in February 2011, the Veteran reported occasional fleeting suicidal ideations with no plan or intent within the last two months; nightmares when he did not want them; avoidance; hypervigilance; and feeling numb or detached. The VA social worker also noted his depressed mood and impaired recent memory. Despite these issues, he stated that he felt he was generally functioning. He also experienced high anxiety, PTSD symptoms, and was tearful on occasion during the mental health assessment. In April 2011, the Veteran’s private internal medicine and geriatrics physician, Dr. S.M. submitted a letter to VA. Here, Dr. S.M. noted that the Veteran had been his patient for almost 20 years, and during that time, the Veteran often complained of anxiety and depressed mood. The Veteran’s mental health presentation was evaluated as fairly neutral with report of moderate symptoms in May 2011 by a VA psychologist. He continued to endorse low mood, isolation, anhedonia, physiological reactions to stressors, flashbacks, hypervigilance, and sleep disturbance with an average of four to five hours of sleep nightly in February 2013. The Veteran denied any current suicidal ideation or homicidal ideations and was described as future oriented. In May 2013, the Veteran was afforded a VA examination to assess his PTSD. He was not found to meet the diagnostic criteria for PTSD under DSM-IV, but rather was diagnosed with anxiety disorder and nondependent or other mixed or unspecified drug abuse. Generally, the Veteran’s observed mental health symptoms included disordered sleep, depressed mood, and anxiety. The Board notes that part of the examiner’s determination that the Veteran did not have a PTSD diagnosis was because the examiner found the Veteran did not have stressors. The Board notes that these stressors had been conceded in April 2013 by VA. The Veteran reported to the examiner that he had a history of substance and alcohol abuse which caused termination from several jobs. He then found employment with the Maryland State Lottery and had been working in sales for 19 years. As part of his job, he was assigned to 105 locations where he talked with owners and lottery operators, and sometimes customers. The examiner found the Veteran’s mental health symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. However, the examiner noted that some evidence demonstrated that the Veteran’s performance anxiety symptoms may contribute to occupational impairment, especially at monthly meetings with the Director of the Maryland State Lottery. Additionally, there was some evidence that his alcohol use caused impairment in social functioning with regards to his relationship with his wife. Although the Veteran reported a lessening of mental health symptom severity due to medication, he complained of becoming increasingly irritable with passengers on his bus route in September 2014. In September 2018, the Veteran had a mental health counseling session for medication management of his PTSD and depression. He described loving his VA volunteer job and not knowing what he would do without it, in addition to spending time with his grandchildren. Prior to the September 2018 counseling session, he had run out of his medication and became very anxious and excitable. The Veteran also complained that his sleep remained subpar; that he still suffered from occasional nightmares; had low appetite and energy; and that his mood was “moody.” Importantly, he denied suicidal or homicidal ideations, or that he tried not to think about it. Finally, the Veteran reported that his wife’s friend had wanted to come over for an hour and he went “berserk,” without understanding why this caused such an angry outburst. Based on the evidence, the Board finds the Veteran’s PTSD with major depressive disorder and anxiety has manifested as symptoms such as disturbances of motivation and mood; anxiety; hypervigilance; chronic sleep impairment; persistent avoidance of stimuli; uncontrolled outbursts; and passive thoughts of suicidal ideation, resulting in occupational and social impairment with reduced reliability and productivity. Regarding social functioning, the evidence affirms that the Veteran has generally led a robust family life through the period on appeal. He repeatedly confirms that his family is his support system. Additionally, he enjoyed his long-term full-time position in sales with the Maryland State Lottery, which required him to interact directly with lottery operators, owners, and customers associated with 105 assigned locations. However, the Veteran also reported occasional irritability with strangers and angry outbursts caused by family friends for reasons that he later stated he did not know. Regarding occupational functioning, the evidence shows a relatively moderate degree of impairment due to his mental health symptoms. Earlier on in the appeal period, he was repeatedly terminated from employment due to issues caused by his substance and alcohol abuse, which was later deemed in remission after the Veteran stopped his substance abuse and only occasionally drank alcohol, if at all. The Veteran maintained steady employment with the Maryland State Lottery for more than two decades and enjoyed the job. However, he described feeling high anxiety when having monthly meetings with the Director of the Maryland State Lottery. After retiring from the Maryland State Lottery, the Veteran volunteered with VA and stated fondly that he did not know what he would do without his volunteer position. The Board recognizes the May 2013 examiner’s opinion that the Veteran’s symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. However, in addition to the evidence discussed above, the Board finds that the evidence also shows that the Veteran does require continuous medication, or he becomes anxious and excitable. Therefore, the Board finds that on balance, the competent and credible evidence reveals that his psychiatric disorder symptoms have resulted more closely to occupational and social impairment with reduced reliability and productivity, as reflected by his current 50 percent disability rating. The Board has considered whether a higher rating of 70 percent is warranted and finds that the weight of the evidence does not support such an increase. Specifically, there was no evidence of the following psychiatric symptoms or similarly severe symptoms: obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; spatial disorientation; neglect of personal appearance and hygiene; near-continuous depression affecting the ability to function independently, appropriately, and effectively; or an inability to establish and maintain effective relationships. The Board does not doubt that the Veteran’s mental health symptoms have impaired occupational functioning moderately, as summarized above and acknowledges the occasional report of passive suicidal ideation and angry outbursts. However, there is no evidence suggesting that these symptoms were near-continuous, or that it affected his ability to function independently, appropriately, and effectively, as contemplated by the 70 percent criteria. Per the Veteran’s own report, he was able to perform his full-time work duties well, sought volunteer opportunities after retirement, and was able to function overall. At no point has the Veteran’s psychiatric disorder manifested as most of the symptoms contemplated by the 70 percent criteria or symptoms of comparable severity. On balance, there is no point during the appeal period where the Veteran’s PTSD, major depressive, and anxiety symptoms, including those that can arguably resemble those listed in the 70 percent rating criteria, resulted in or approximated occupational and social impairment with deficiencies in most areas as described by the 70 percent rating criteria. Vazquez-Claudio, supra. As the evidence preponderates against the award of a rating in excess of 50 percent for PTSD, including major depressive disorder and anxiety, for the initial appeal period prior to February 22, 2019, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. REASONS FOR REMAND Service connection for hepatitis C is remanded. The Veteran seeks service connection for hepatitis C, to include as secondary to his service-connected PTSD. He contends that his service-connected PTSD caused his substance abuse, which then resulted in his hepatis C contraction. Initially, the Board notes that the Veteran’s medical records demonstrate a diagnosis of hepatitis C. Furthermore, VA clinicians have included remarks indicating a possible nexus between the Veteran’s service-connected PTSD and his hepatitis C diagnosis. Specifically, in January 2013, a VA infectious disease physician stated that his past history of drug abuse while in the military could possibility account for his hepatitis C infection. The Veteran has not yet been afforded a VA examination to determine the nature and etiology of his hepatis C. In this case, the Veteran has provided competent evidence of a current disability and his VA medical records reveal a possibility that his diagnosis may be related to his service-connected PTSD. However, there is insufficient competent medical evidence on file for the Board to render a decision. As such, VA’s duty to assist has been triggered and a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the current nature and etiology of his hepatitis C. Following a review of the claims file and any clinical examination results, the examiner is asked to opine on the following: (a) Is it at least as likely as not (i.e. 50 percent or greater) that the Veteran’s hepatitis C is due to an in-service injury, event, or incident? (b) Is it at least as likely as not (i.e. 50 percent or greater) that the Veteran’s hepatitis C was caused by his service-connected PTSD? (c) Is it at least as likely as not (i.e. 50 percent or greater) that the Veteran’s hepatitis C was aggravated (permanently worsened beyond natural progression) due to his service-connected PTSD. If aggravation is found, the examiner is asked to quantify the degree of additional disability resulting from aggravation. The examiner is asked to specifically consider the Veteran’s statements regarding his hepatitis C and service-connected PTSD. Thorough rationales should be provided for any opinions expressed. If the examiner determines that he/she/they cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she/they should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 2. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.