Citation Nr: 21025392 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-26 206 DATE: April 28, 2021 ORDER Entitlement to a 70 percent rating for post-traumatic stress disorder (PTSD), from January 25, 2010 to April 5, 2016, is granted. Entitlement to a rating greater than 30 percent for PTSD beginning April 5, 2016, is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. For the period prior to April 5, 2016, the Veteran’s PTSD manifested with occupational and social impairment with deficiencies in most areas, but not total impairment. 2. Beginning, April 5, 2016, the Veteran’s PTSD manifested with no more than occupational and social impairment with occasional decrease in work efficiency. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating for PTSD, from January 25, 2010 to April 25, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9412 (2019). 2. The criteria for a disability rating in excess of 30 percent for PTSD, for the period beginning April 5, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9412 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from September 1967 to September 1971 and he is the recipient of a Purple Heart. In October 2018, the Board remanded these matters for further development. Thus, the matters have been returned to the Board for further appellate review. 1. Entitlement to a rating greater than 30 percent for PTSD. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran’s PTSD has been assigned a 30 percent rating for the entire appeal period and evaluated under Diagnostic Code 9412 which uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9412. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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). A 50 percent rating is assigned when a veteran’s psychiatric disorder causes occupational and social impairment with 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9412. A 70 percent evaluation is warranted when there is 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 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. 38 C.F.R. § 4.130, Diagnostic Code 9412. The maximum schedular rating of 100 percent is warranted when there is 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; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9412. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to 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). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, 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). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment; but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b). Factual Background A review of the evidence shows the Veteran received a VA examination for PTSD in April 2010 in which the Veteran reported being treated with anti-anxiety and anti-depressant medications since leaving service. He reported being married for 34 years and that they get along well. He also reported that he adopted his wife’s daughter and they have a daughter together. He indicated that after service, he attempted to go back to school, but he could not handle the crowds. He reported having nightmares at least every month, being easily upset and verbally aggressive, and that he repeatedly checks doors, locks, and windows to ensure they are secure. The examiner noted the Veteran was currently prescribed mood stabilizing agents but indicated that this has done little for his continued recall of past military stressor events. The Veteran’s sleep is very poor, and fraught with nightmares, night sweats, and intense physiological reactivity. The examiner also noted the Veteran is easily agitated by even the most mundane situational life stressor secondary to his autonomic instability, and he avoids situations in which autonomic triggering and intense emotional reactivity might occur. Further, he has considerable pain, grief, and disappointment concerning events that transpired in service. The examiner diagnosed the Veteran with PTSD, chronic; depressive disorder, NOS; and panic disorder with agoraphobia (by history); and found that the Veteran exhibits severe symptoms of PTSD. In an October 2012 mental health consult, the Veteran reported being on benzodiazepines for the past 20-25 years. He reported feeling more depressed approximately one month ago and symptoms of nightmares, intrusive recollections, hypervigilance, difficulty in crowds, emotional numbing, anhedonia, irritability, and avoidance of triggers. He reported having recurrent panic attacks over the past 20 years and that he avoids some settings or crowds for fear of having a panic attack. The examiner noted the Veteran has a history of chronic autonomic arousal and instability with very low stress tolerance. He has been on medications for many years by primary care, but he has had no history of suicide attempts or violence, or hospitalizations. The examiner diagnosed the Veteran with panic disorder with agoraphobia, PTSD, and depression; and found the Veteran has severe and chronic PTSD symptoms which have increased over the last 10 years. In his April 5, 2016, PTSD examination, the Veteran reported he currently resides in an apartment in Hillman with his 12-year-old grandson. He reported that he is the primary caregiver because his daughter needed assistance raising her children. The Veteran described his relationship with his grandson as “heaven.” He indicated he divorced in 2013 after 38 years of marriage and that this resulted in an increase in depressive and PTSD symptoms. The Veteran endorsed positive relationships with each of his family members and denied any relationship issues at this time. The Veteran reported having many friends and said that they enjoy fishing and hunting together. He also serves as assistant coach in basketball and softball. His day consists of taking his grandson to school, then he returns home to complete some household chores. He may go and visit local friends or family, then he picks up his grandson from school and assists him with his schoolwork or enjoys evening activities with his grandson. Occupationally, the Veteran reported that he is a retired construction worker. He reported working until three years ago when hip pain prevented him from working. He denied experiencing any behavioral issues at work and denied ever being reprimanded or fired. He described good interpersonal relationships with his coworkers. With regard to mental health, the Veteran stated that he is doing “okay.” He endorsed depressive thoughts and reported current symptoms of depressed mood, avoidance of situations, and intrusive memories. However, he indicated that his grandson helps improve his mood, and he also uses his religious faith to cope with PTSD. The examiner found symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The examiner explained that the Veteran’s PCL-M score administered in April 2010 was 72, whereas, his current score was 48. Furthermore, the examiner noted the Veteran’s BDI-II score of 9 was suggestive of minimal depression, and that the Veteran endorsed no recent occurrence of panic attacks that would be characteristic of panic disorder as he reported his last panic attack occurred several years ago. Thus, the examiner concluded that his symptoms cause occupational and social impairment with occasional decrease in work efficiency. In his October 2019 PTSD examination, the Veteran was found to have occupational and social impairment due to mild symptoms. In the examination, the Veteran reported currently living in an apartment with his two grandchildren, aged 15, as their mother has been incarcerated. He reported that he gets along with family, friends, neighbors, co-workers, bosses, and he is not dating. The Veteran reported being retired. A typical day involves getting up at 6 am; he takes the children to school and does the household chores. For fun, the Veteran reported that he has friends, and he goes hunting and fishing. Further, he stated that his overall health is excellent, and he has no mental health treatment. The examiner noted a symptom of depressed mood but no other symptoms. Analysis Based on the above and remaining evidence, the Board finds a staged rating is warranted. While the Veteran has been assigned a 30 percent rating for the entire appeal period, the evidence shows that the Veteran initially exhibited severe PTSD symptoms that subsequently decreased during the appeal period. Thus, the Board finds a 70 percent rating is warranted from January 25, 2010, the date of his claim, to April 5, 2016. However, as of April 5, 2016, the Veteran has been appropriately assigned a 30 percent rating. As noted above, the examiner in the Veteran’s April 2010 PTSD examination described the Veteran’s psychiatric symptoms as severe. In addition, with regard to the severity, frequency, and duration of his symptoms, the examiner explained that PTSD pathology is manifested on a daily basis; symptom severity vacillates between moderately severe and severe ranges; and when autonomic triggering and intense emotional reactivity occurs, symptoms may persist for up to a few hours before the Veteran can calm down and soothe himself. Similarly, the examiner in the Veteran’s October 2012 mental health consult found that PTSD was chronic and severe. For these reasons, the Board finds a 70 percent rating is warranted from January 25, 2010 to April 5, 2016. A higher rating is not warranted as the Veteran did not exhibit total social and occupational impairment. Although his symptoms were characterized as severe, the Veteran was noted to have been married for 34 years at that time and stated that they have a good relationship. Although he reported avoidance of crowds, he indicated that he and his wife would still go out to an occasional event if there were not any crowds. He also reported doing good with his medications right now as he knows what to expect. The Veteran was also not totally impaired occupationally as he reported in his April 2016 VA examination that he retired because of his hip pain. He denied experiencing any behavioral issues at work and denied ever being reprimanded or fired. He further noted that he would have continued working if he could. Therefore, the Board concludes a 70 percent rating, but no higher, is warranted from January 25, 2010 to April 5, 2016. However, as of April 5, 2016, the Veteran showed a significant decrease in symptoms; therefore, a rating greater than 30 percent is not warranted. In his April 5, 2016 examination, the Veteran reported enjoying raising his grandson and maintaining an active social life with friends and family. He was also engaged with extracurricular activities, including serving as a coach in basketball and softball. Although the examiner noted the Veteran presented with clinically significant PTSD symptoms, the examiner found that the Veteran’s symptoms cause an occasional decrease in work efficiency, indicative of a 30 percent rating, and that his symptoms have declined in frequency and severity. The examiner concluded that, in light of the Veteran’s examination and his mental health recovery, he currently meets diagnostic criteria for PTSD, but his symptoms have notably remitted; substantial depressive symptoms no longer co-occur with PTSD; and the Veteran no longer meets DSM-5 diagnostic criteria for panic disorder with agoraphobia. This finding is best evidenced in the Veteran’s own reports of decreased symptomatology during the examination. Although he endorsed depressive thoughts, this was described as occasional and were related to his recent divorce and his perceived ability to raise his grandson, and not his military trauma. He also reported that his nightmares have decreased, and that he has learned to cope with PTSD over time. Additionally, the Veteran reported he no longer experiences panic disorder with agoraphobia as he has learned how to deal with it, sometimes through the use of psychiatric medication. Moreover, he stated that he used to experience difficulty leaving the house, but this is no longer problematic for him, and his last panic attack was two years ago during the divorce. Based on these findings, the Board concludes the Veteran’s symptoms were not of the severity, frequency, or duration to warrant a rating greater than 30 percent. Furthermore, in an October 2016 medication management note, it was noted that the Veteran was last seen in January 2015. He reported that he forgot to schedule his appointments because he was doing so well. He further reported continuing his medication regimen as before and described a decrease in symptoms where he noted having occasional bouts of increased anxiety or feeling on the verge of a panic attack and occasional intrusive recollections or avoidance of triggers related to PTSD. However, he stated that he feels these remain at a stable baseline and denied feeling depressed or suicidal ideation, and he continues to care for his grandson which he enjoys. For these reasons, the Board concludes a 70 percent rating, but no higher, is warranted prior to April 5, 2016. However, the preponderance of evidence is against finding a rating greater than 30 percent is warranted thereafter. REASONS FOR REMAND 1. Entitlement to service connection for GERD is remanded. The Veteran contends his GERD was caused by medications from his service-connected PTSD. Pursuant to the Board’s remand, an examination and opinion were obtained to determine the etiology of the Veteran’s GERD. The examiner noted a diagnosis of GERD and Barrett’s esophagus but found that the conditions were unrelated to PTSD. In doing so, the examiner noted that the Veteran takes medications for these conditions, but she concluded that there is no medical evidence to support that GERD or Barrett’s esophagus are proximately due to or the result of PTSD. However, the Board finds this opinion inadequate. The Board notes that the examiner’s finding is general and vague and requires clarification. Specifically, the Board cannot determine what “medical evidence” the examiner is referencing as the examiner did not refer to any medical literature or otherwise to support her opinion. Thus, the opinion is inadequate, and remand is warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records and associate them with claims folder. 2. Obtain a medical opinion from a different examiner to determine the etiology of the Veteran’s digestive disorder. Schedule the Veteran for a VA examination only if deemed necessary by the examiner. The examiner must review the claims folder, including a copy of this remand and all lay statements of record. a) The examiner should first identify all currently diagnosed digestive disorders of record. b) Then, provide an opinion as to whether it is at least as likely as not that each identified digestive disorder was proximately caused OR was aggravated by service-connected PTSD, including medications taken for PTSD. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so 3. Then, readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.