Citation Nr: 21027495 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 13-22 240A DATE: May 5, 2021 ORDER Entitlement to an initial rating greater than 70 percent prior to January 7, 2020, for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The record evidence shows that, prior to January 7, 2020, the Veteran's service-connected PTSD is manifested by, at worst, complaints of depression, impulse control problems, irritability, social isolation, nightmares, intrusive thoughts, auditory hallucinations, and chronic sleep impairment. CONCLUSION OF LAW The criteria for entitlement to an initial rating greater than 70 percent prior to January 7, 2020, for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1990 to June 1993, including in the southwest Asia theater of operations during the Persian Gulf War. This case has a long procedural history. Most recently, in June 2019, the Board remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the AOJ schedule the Veteran for updated examination to determine the current nature and severity of his service-connected PTSD. This examination occurred in January 2020. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In a January 2020 rating decision, the AOJ assigned a 100 percent rating effective January 7, 2020, for the service-connected PTSD. Thus, the Board has recharacterized this issue as stated above. The AOJ also granted service connection for gastroesophageal reflux disease (GERD) with a hiatal hernia, right foot hallux valgus, and for left foot hallux valgus in the January 2020 rating decision. There is no subsequent correspondence from the Veteran expressing disagreement with the rating or effective date assigned. Accordingly, issues relating to service connection for GERD with a hiatal hernia, right foot hallux valgus, and left foot hallux valgus, are no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). Because the Veteran currently lives within the jurisdiction of the RO in Houston, Texas, that facility has jurisdiction in this appeal. Entitlement to an initial rating greater than 70 percent prior to January 7, 2020, for PTSD The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to an initial rating greater than 70 percent prior to January 7, 2020, for PTSD. The Veteran essentially contends that his service-connected PTSD has been totally disabling throughout the appeal period. The record evidence does not support his assertions, at least prior to January 7, 2020 (the date that the AOJ assigned a 100 percent schedular rating for PTSD). It shows instead that, prior to January 7, 2020, the service-connected PTSD is manifested by, at worst, complaints of depression, impulse control problems, irritability, social isolation, nightmares, intrusive thoughts, auditory hallucinations, and chronic sleep impairment. For example, on VA outpatient treatment in November 2002, the Veteran's complaints included "more problems with impulse control and has been getting in argument[s] with his family." An "extensive" history of depression was noted. Mental status examination of the Veteran showed full orientation, some depressive symptoms and difficulties with anger, no delusions, and "very passive." The Veteran's Global Assessment of Functioning (GAF) score was 45, indicating serious symptoms or any serious impairment in social, occupational, or school functioning. The Axis I diagnoses included PTSD. In January 2003, the Veteran's complaints included "serious difficulties with impulse control." He reported slightly better sleep. Mental status examination of the Veteran showed full orientation, depression, "and severe difficulties with impulse control." The Veteran's GAF score was 40, indicating some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. The Axis I diagnoses included PTSD. The Veteran was advised to continue taking his medications. In February 2003, the Veteran's complaints included "serious problems with impulse control" and having arguments with his family. Mental status examination of the Veteran showed full orientation, "more calm today but is still with severe irritability and mood swing[s]," a reported inability to tolerate stress or social interactions, and continued isolation. The Veteran's GAF score was 40. The Axis I diagnosis was PTSD. In a letter dated later in February 2003 from a Vet Center therapist, this clinician stated that the Veteran reported several in-service traumatic experiences while deployed to the southwest Asia theater of operations during the Persian Gulf War. He had been diagnosed as having PTSD. His PTSD symptoms included recurring nightmares and intrusive thoughts of his in-service experiences, avoidance of activities and conversations "that arouse traumatic memories," angry outbursts and irritability, hypervigilance, and an exaggerated startle response. A history of prior hospitalization was reported by the Veteran. In a March 2003 "addendum" included in the Veteran's VA outpatient treatment records, a VA clinician stated that he reported "significant symptoms of depression, frequent auditory hallucinations, and anger management difficulties. In addition, he reported both suicidal and homicidal ideation with attempts in the past. He denied any re-experiencing symptoms associated with any specific military trauma." This clinician also stated that the Veteran's self-reported in-service traumas "were inconsistent." The Veteran also reported "a significant psychiatric history with two inpatient hospitalizations for a suicide attempt and threatening behaviors." He lived with his mother, stepfather, and 2 minor siblings (a brother and a sister). He reported physically abusing his brother recently. He denied symptoms consistent with a primary diagnosis of PTSD. On VA outpatient treatment in September 2007, the Veteran reported that "he occasionally sees things that others do not see" and had "fair to poor" sleep. Mental status examination of the Veteran showed full orientation, an anxious mood, reported poor sleep, stable appetite and weight, and fair insight and judgment. The assessment included PTSD. In June 2009, the Veteran's complaints included mood instability, social anxiety, depression, and fragmented sleep. He reported transient suicidal thoughts 2 weeks earlier but denied any acute suicidal or homicidal ideation or plan. He was not psychotic. He continued to report PTSD symptoms stemming from his Persian Gulf War service. Mental status examination of the Veteran showed average grooming and hygiene, casually dressed, good eye contact, hypervigilance, an exaggerated startle response, intermittent anxiety, fluent and spontaneous speech, coherent, linear, and goal-oriented thought processes, no delusions, reported intrusive thoughts "of combat trauma from Persian Gulf service," no suicidal or homicidal ideation, no hallucinations or perceptual disturbances, grossly intact cognitive function, and fair/good insight and judgment. He stated that he had not taken any psychotropic medication for several months and would like to restart taking medication. The Veteran's GAF score was 55, indicating moderate symptoms or moderate difficulty in social, occupational, and school functioning. The Axis I diagnoses included PTSD. He was restarted on medication. In July 2009, the Veteran's complaints included chronic PTSD symptoms such as combat-related nightmares, intrusive thoughts, hypervigilance, hyperarousal, fragmented sleep, and avoidance. He denied any suicidal or homicidal ideation or plan. Mental status examination of the Veteran was unchanged. His GAF score was unchanged. The Axis I diagnoses were unchanged. He was given new medication for his nightmares and advised to continue taking all of his psychotropic medications. In October 2009, the Veteran stated that he was doing "pretty good." He reported no decrease in severity or frequency of nightmares. He continued to experience middle insomnia. He endorsed PTSD symptoms of recurrent thoughts of combat, avoidance, hyperarousal, and chronically fragmented sleep. Mental status examination of the Veteran showed average grooming and hygiene, casually dressed, good eye contact, hypervigilance, elevated startle response, intermittent anxiety, fluent and spontaneous speech, coherent, linear, and goal-oriented thought processes, no delusions, reported intrusive thoughts of combat, no suicidal or homicidal ideation or plan, no hallucinations or perceptual disturbances, full orientation, grossly intact cognitive function, fair insight, and good judgment. The Veteran's GAF score was 55. The Axis I diagnoses included PTSD related to Persian Gulf War service. On VA PTSD examination in February 2010, the Veteran's complaints included anxiety, nightmares, poor concentration, and less irritability and anger. The VA examiner reviewed the Veteran's electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran was divorced. He reported that he had a "fair rapport" with his 1 daughter talking to her on the phone "but she avoids personal contact" due to conflict with him when she was growing up as a result of his irritability and nightmares. He had a "good rapport with [his] siblings." He had no friends. He had a girlfriend/fiancée "but conflict due to [sic] nightmares and irritability." A history of suicidal ideation was noted. A history of several episodes of violence also was noted but "none since 1998." He lived with his fiancée. He spent time "with medical and psychiatric appointments and then at home most of the time" where he watched television. He avoided "crowds, noise, and new people." Mental status examination of the Veteran in February 2010 showed he was clean, neatly groomed, casually dressed, tense psychomotor activity, spontaneous, clear, and coherent speech, an anxious, irritable mood, easily distracted, short attention span, full orientation, unremarkable thought process, reported intrusive thoughts of combat 3-4 times a week, no delusions, reported sleep impairment due to middle insomnia with a total of 6 hours sleep per night and nightmares of combat 2 times a week, no hallucinations, inappropriate behavior, obsessive/ritualistic behavior, panic attacks, or suicidal or homicidal thoughts, fair impulse control, no episodes of violence, reported "periodic loss of temper," an ability to maintain minimum personal hygiene, reported daily paranoid ideas, normal remote memory, mildly impaired recent memory, and normal immediate memory. The Veteran's GAF score was 40. He met the DSM-IV criteria for a diagnosis of PTSD. On VA PTSD examination in March 2011, the Veteran's complaints included "severe difficulty being outside of his home, around others, and using public transportation due to treatment resistant paranoia and auditory hallucinations." The VA examiner stated that the Veteran "had slightly less difficulty falling asleep" with treatment for his PTSD but sleep still was non-restorative due to hypervigilance, exaggerated startle response, and nightmares of combat. His reported PTSD symptoms included a depressed mood, anxiety, suspiciousness, panic attack which occur weekly or less often, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and persistent delusions or hallucinations. His GAF score was 50. The diagnoses included PTSD. On VA PTSD DBQ in June 2013, the Veteran's complaints included irritability, insomnia, social avoidance, poor concentration, and passive suicidal thoughts. He was married but separated from his wife "due to her derogatory attitude towards him and his loss of temper." He had a 6-month-old daughter. He had "distant rapport" with his 3 siblings. He also had a good but "somewhat" more distant rapport with his mother. He spoke with 2 friends about 2 times a month but "otherwise is socially avoidant of others." He shared custody of his daughter. He read, listened to music, and went to church. The Veteran's therapy and medication regiment had reduced his depression, hallucinations, and paranoia. His PTSD symptoms included a depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Hallucinations and paranoia were present "but not persistent and less intense and frequent on [medications]." The Axis I diagnoses included PTSD. On VA outpatient treatment in July 2015, the Veteran stated he was "not so well." He reported increased anxiety, irritability, more frequent war-related nightmares, and more social isolation. He reported auditory hallucinations ("hearing the voice of God inside his head which tells him he is [good] and he is able to cope with the anxiety symptoms. Has also been hearing the voice of the Devil that tells him he is worthless"). He had experienced this auditory hallucination "for many years." He denied a depressed mood, feelings of worthlessness, hopelessness, or helplessness, or suicidal or homicidal ideation. A history of suicide attempts was noted. Mental status examination of the Veteran showed good hygiene and grooming, good eye contact, full orientation, good attention and concentration, no psychomotor retardation or agitation, clear and coherent speech, organized, linear, and goal-directed thought process, no delusions or hallucinations, and good judgment and insight. The assessment included a mild to moderate exacerbation of PTSD "and a mild deterioration of the auditory hallucinations." He was advised to resume taking Sertraline. The DSM-5 diagnoses included PTSD. VA PTSD screening in January 2016 was negative. On VA outpatient treatment in November 2017, the Veteran reported he was "feeling 'fine.'" He experienced "frequent anxiety due to different stressors 'with everything' including paying bills." He had episodes of sadness once or twice a month. His sleep was variable. He denied any suicidal or homicidal ideation, auditory or visual hallucinations, or delusions. He lived with his wife after recently getting remarried and a daughter who lived with them during the week. He also had an adult daughter from a previous relationship who does not live with him. Mental status examination of the Veteran showed he was appropriately dressed and groomed, no abnormal movement, normal speech, goal directed and logical thought processes, no suicidal or homicidal ideation or delusions, no auditory or visual hallucinations, adequate judgment and insight, and grossly intact orientation. A history of suicide attempts prior to 2002 was noted. The VA clinician concluded that the Veteran did not meet the criteria for a diagnosis of PTSD although he endorsed some of the PTSD symptoms. Contrary to the Veteran's lay assertions, the record evidence shows that, prior to January 7, 2020, his service-connected PTSD is manifested by, at worst, complaints of depression, impulse control problems, irritability, social isolation, nightmares, intrusive thoughts, auditory hallucinations, and chronic sleep impairment throughout the appeal period. These consistent findings on VA outpatient treatment visits and examinations conducted during the appeal period support the initial 70 percent rating assigned prior to January 7, 2020, for the service-connected PTSD under DC 9411. See 38 C.F.R. § 4.130, DC 9411 (2019). A history of suicide attempts and fleeting suicidal ideation was noted by the Veteran's VA treating clinicians although the clinician stated in March 2003 that he was inconsistent in what he reported concerning his in-service trauma. Medications were restarted in 2009 and appeared to help improve the Veteran's service-connected PTSD symptomatology at that time and throughout the appeal period. There also is no indication that the Veteran experienced symptoms of similar frequency, severity, and duration as is required for an initial rating greater than 70 percent prior to January 7, 2020, for the service-connected PTSD under DC 9411. Id.; see also Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). His thought processes consistently were logical and goal-oriented on VA outpatient treatment visits and examinations conducted during the appeal period. There was no inappropriate behavior noted on VA examination in February 2010. He had full orientation throughout the appeal period. And there is no indication that he had problems maintaining more than minimum personal hygiene or experienced more than mild memory loss prior to January 7, 2020. The Board recognizes that the Veteran reported experiencing auditory and visual hallucinations as a result of his service-connected PTSD during the appeal period. VA PTSD DBQ in June 2013 noted that hallucinations and paranoia were present "but not persistent and less intense and frequent on [medications]." Although he subsequently reported a "mild deterioration of the auditory hallucinations" on VA outpatient treatment in July 2015, he was prescribed additional medication to treat them. He denied experiencing any auditory or visual hallucinations or delusions on VA outpatient treatment in November 2017. Critically, the November 2017 VA clinician concluded that the Veteran no longer met the diagnostic criteria for PTSD although he endorsed multiple PTSD symptoms. This persuasively suggests to the Board that the symptomatology associated with the Veteran's service-connected PTSD had improved and was not totally disabling at that time. Taken together, the record evidence does not support assigning an initial rating greater than 70 percent prior to January 7, 2020, for the Veteran's service-connected PTSD. Id. He finally has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 70 percent prior to January 7, 2020, for the service-connected PTSD. In summary, the Board finds that the criteria for an initial rating greater than 70 percent prior to January 7, 2020, for PTSD have not been met. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.