Citation Nr: 21027960 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 15-01 884 DATE: May 7, 2021 ORDER Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (hereinafter, "PTSD") prior to October 29, 2019 is denied. Entitlement to an evaluation in excess of 50 percent for PTSD on and after October 29, 2019 is denied. FINDINGS OF FACT 1. Prior to October 29, 2019, the Veteran's PTSD manifested as depressed mood, anxiety, chronic sleep impairment, difficulty adapting to stressful circumstances, intrusive thoughts, irritability when stressed, and suspiciousness. 2. Since October 29, 2019, the Veteran's PTSD manifested by depressed mood, anxiety, intrusive thoughts, decreased frustration tolerance triggering frequent episodes of irritability, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 30 percent for service-connected PTSD for the period on appeal prior to October 29, 2019 were not met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a rating higher than 50 percent for service-connected PTSD for the period on appeal prior beginning October 29, 2019 and after were not met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from July 1966 to June 1968. This appeal is before the Board of Veterans' Appeals (Board) from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing in January 2021, and that request was withdrawn in April 2021. In February 2019, the Board remanded the issues on appeal in order to ask the Veteran if he had received any mental health treatment since March 2014, and if so, to obtain those records. Additionally, the RO was directed to schedule the Veteran for a VA examination to assess the current severity of his service-connected PTSD. The Veteran underwent the required VA examination in October 2019. As a result, the RO granted an increase in his disability rating to 50 percent, effective October 29, 2019, the date of the examination. The Veteran disagreed with the effective date assigned for the 50 percent rating. He did not have to do so, however, as his appeal has been pending, and the Board will consider the entirety of the evidence in determining whether that higher rating should have been awarded from an earlier date. The Board finds the RO substantially complied with the remand instructions and an additional remand to comply with the remand directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim and the Board's reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence that is not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the June 2020 Supplemental Statement of the Case (SSOC) and are not repeated here in full. The Veteran has not raised any specific duty to notify or duty to assist issues regarding this claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the Veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board notes evidence was received after the last Supplemental Statement of the Case, but this was submitted by the Veteran, so no waiver of RO consideration is needed. As for the additional VA outpatient records added to the file in October 2020, they contained no mental health treatment records, so they are not relevant to the issue on appeal and RO consideration is not needed. Increased Rating The Veteran was service connected for PTSD effective in November 2012, with a disability evaluation of 30 percent. In October 2019, the Veteran's rating was increased to 50 percent. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. Fenderson v. West, 12 Vet. App. 119 (1999). PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. 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 symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent evaluation 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 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); inability to establish and maintain effective relationships. A 100 percent disability evaluation is warranted where 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; memory loss for names of close relatives, own occupation, or own name. Id. 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 and how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission. See 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the 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 time 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. See 38 C.F.R. § 4.126(b). The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to each claim. Here, the Veteran is currently assigned an initial rating of 30 percent for PTSD from November 2012 to October 2019. He filed a timely notice of disagreement with the initial rating and filed a timely Form 9 after the RO issued a Statement of the Case. As a result, the period on appeal dates to the initial claim date in November 2012. Prior to October 2019 After a careful review of the record and for reasons and bases expressed immediately below, the Board finds the 30 percent evaluation adequately compensates the Veteran for his PTSD for the period on appeal prior to October 2019. In January 2013, the Veteran reported that he experienced flashbacks, restless and sleepless nights, and night sweats as a result from his time in the Navy and resulting PTSD. He stated that he had scared his wife numerous times from his nightmares, and his friends have told him that, when he is mad, the look on his face is so scary, they are afraid of him snapping. He reported that he took aspirin daily, drank alcohol daily, owned a gun and always sat with his back to a wall. See January 2013 Statement in Support of Claim. The Veteran underwent a VA examination in May 2013. The examiner determined that the Veteran experienced occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks during periods of significant stress. At the time of the examination, the Veteran had been married for 44 years, had two sons, and reported no problems in his relationships. He stated that he had friends that he would socialize with and ride his motorcycle. In May 2013, the Veteran reported that he has been in sales for 40 years and had 32 years with his current employer. He had lost his temper at work when stressed but had never received disciplinary action. The examiner noted the Veteran's symptoms were suspiciousness, anxiety, chronic sleep impairment, difficulty adapting to stressful circumstances in a worklike setting, and obsessional rituals which interfere with routine activities, although the examination does not detail what those rituals are, or how they interfere with routine activities. See May 2013 VA Examination. Between January and May 2014, the Veteran met with a Counselor at a VA clinic. During that time, the Veteran's symptoms manifested as intrusive thoughts, anxiety, insomnia, experiencing flashbacks, nightmares, and a short temper. He continued to feel uncomfortable discussing his service, at times making him angry or upset. Following one session, the Veteran had an argument with, and yelled at, his receptionist, causing her to cry. He discussed difficulty falling and staying asleep due to thoughts of his traumatic experiences. Throughout this time, the Counselor noted that the Veteran was anxious during the sessions. He denied any suicidal ideation. See 2014 Veterans Center Records. In December 2014, the Veteran was afforded another VA examination. At that examination, the Veteran exhibited occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran reported that some of his symptoms had worsened since the last evaluation. This worsening timed with his starting treatment and discussing his traumatic experiences at the Veterans Center. The Veteran reported there were no significant changes in his marital or social relationships. The Veteran did report that the recent worsening of his symptoms was causing more strain on his marriage. His spouse had moved out of the bedroom over the previous year due to his increased difficulty with sleep and she noted that he "flies off the handle" more. He was not socializing as much as he used to. The Veteran reported drinking 3 drinks per day but denied an increase in alcohol consumption. The examiner noted that the Veteran's symptoms were anxiety, chronic sleep impairment, and disturbances of motivation and mood. See December 2014 VA Examination. Based on the totality of the evidence, the Board finds that a 30 percent evaluation, but no higher, prior to October 2019 is appropriate. The Board recognizes that during this time, the Veteran had some PTSD symptoms resembling those contemplated by the higher rating criteria. However, at no time were such symptoms shown to result in reduced occupational and social impairment as contemplated by the 50 percent rating criteria. Vazquez-Claudio, 713 F.3d 112, 117-18. The fact is the Veteran remained employed and denied having any disciplinary actions. While he may have begun to socialize "less," he still maintained friendships and relationships. In other words, the symptoms did not affect his social and occupational functioning to the extent contemplated by a 50 percent rating. Furthermore, while the Veteran's PTSD symptoms certainly may have worsened during this period, they generally had not manifested in or approximated the level of severity contemplated by the 50 percent rating. The Veteran's representative argues that his May 2013 examination shows occupational and social impairment with deficiencies indicative of a 70 percent rating, i.e., obsessive rituals, impaired impulse control and difficulty adapting to stressful situations, and that these symptoms are sufficiently severe to warrant this rating. Further, the representative argues the severity of these symptoms is more than the occupational or social impairment with reduced reliability indicative of a 50 percent rating. These symptoms cause the Veteran to be deficient in most areas at work and at home as evidenced by the deterioration of his relationship with his wife and his angry outbursts at work. See January 2019 Informal Hearing Presentation. However, as discussed above, the May 2013 VA examination stated that the Veteran still socialized with friends and he was still working full time. Additionally, he reported that he had no problems in his relationships with his family. Although he had been irritable at work, he had not been disciplined. Examiners throughout this time period consistently described the Veteran as calm and cooperative. While he reported anger issues, he did not have impaired impulse control (such as unprovoked irritability with periods of violence). The Veteran reported flashbacks occurred every other week generally, although during consistent psychiatric treatment he reported more frequent flashbacks. The Veteran also indicated obsessive rituals, but did not indicate what those rituals were, or how they might interfere with routine activities. In summary, the weight of the evidence does not show symptoms comparable to flattened affect, impairment of short- and long-term memory; impaired judgment; or impaired abstract thinking, all as contemplated by the 50 percent rating. As such, the Board finds the 30 percent rating assigned appropriately reflects the severity of his social impairment during this period on appeal. Therefore, despite the Veteran's contentions, an evaluation in excess of 30 percent for the period between November 2012 and October 2019 is denied. Since October 2019 The RO, in its June 2020 SSOC, indicated that October 29, 2019, the date of the most recent VA examination, is the date medical evidence first showed the Veteran's disability had increased in severity. At a VA examination in October 2019, the examiner concluded the Veteran's PTSD had caused reduced occupational and social impairment. His symptoms included depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting. Occupationally, the Veteran's reduced productivity and reliability have resulted in him now working less than part time, due to the following symptoms: disturbances of mood and motivation; decreased concentration and mental energy due to chronic sleep disturbances; and decreased ability to effectively adapt and appropriately respond to work-like stressors to include interactions with customers, coworkers, and supervisors triggering frequent episodes of irritability, verbal aggression and absenting himself without notice as a means to avoid having a negative interaction. The examiner noted no evidence of indirect thought process, loose associations, or paranoid ideation. The Veteran denied suicidal ideation. See October 2019 VA Examination. The Veteran, through his representative, submitted statements from himself and his wife in April 2021. The Veteran stated that he has flashbacks, which cause him to be anxious. When anxious, or when something goes wrong, he is irritable and "fl[ies] off the handle," regularly. He stated that his wife bears the brunt of his anger and irritability; that she has to be careful around him. At the time of the statement, the Veteran was experiencing flashbacks approximately once every other week. He still had chronic sleep impairment, waking two or three times per night, and sleeping five to six hours per night. He now works three days per week and is short tempered a couple of times per month, especially when he has flashbacks, causing him to yell at coworkers. The Veteran stated that he experiences feelings of depression two to three times per month, during which time he isolates himself. His friends tell him that they are scared when he is irritable, which usually happens about twice per month. The Veteran also has difficulty concentrating. See Veteran's March 2021 Statement. The Veteran's spouse, L.C., also submitted a statement in which she described her observations while residing with the Veteran. She described that the Veteran has flashbacks or nightmares while sleeping, often kicking her, a couple of times per month. If she asks about his nightmares, he will sometimes be irritated, yell, and stare into space, which leads her to believe he is thinking about the incident. L.C. stated that the Veteran does not act like this all the time, rather "he is a nice guy most time but when he remembers what happens he becomes anxious and irritable. His mood changes. It comes and goes." She stated that they no longer have much of a social life anymore, as he is not very comfortable around a lot of people. The Veteran seems to become withdrawn around people he does not know. L.C. stated that the Veteran told her the incident was very traumatic for him to witness, and he has, to her, never been the same since he came home. See Veteran's Spouse's April 2021 Statement. Based on the totality of the evidence, the Board finds that a 50 percent evaluation, but no higher, beginning October 2019 and after is appropriate. The Board recognizes that during this time, the Veteran had some PTSD symptoms resembling those contemplated by the higher rating criteria. However, at no time were such symptoms shown to result in decreased occupational and social impairment as contemplated by the 70 percent rating or higher. Vazquez-Claudio, 713 F.3d 112, 117-18. The October 2019 VA examination stated that the Veteran continued to work, although part time, so he does have reduced reliability, as contemplated by the 50 percent rating. However, the Veteran's PTSD symptoms generally have not manifested in or approximated the level of severity contemplated by the 70 percent rating or higher. The Veteran remains able to maintain judgment over his actions when irritated. The Veteran indicated in his statement that he still socialized with friends. While he may socialize less, that is contemplated by the 50 percent rating, which contemplates difficulty in establishing and maintaining effective work and social relationships. He certainly does not have total social and occupational impairment, as he is able to maintain some relationships and continue working. It appears his episodes of increased mood disturbances such as anger or irritability happen 2-3 times per month; otherwise, his spouse stated that he is often a "nice guy." His mood symptoms then, while clearly affecting his social relationships, have not resulted in the level of social impairment associated with the next higher rating. He has denied suicidal ideation, and he has never displayed impaired speech or thought processes during his examinations/treatment. While he reports some memory issues, there is no objective evidence of any type of disorientation or memory loss to the extent described in the criteria for a 100 percent rating. Furthermore, as for the effective date assigned, the October 2019 VA examination is the first medical evidence that showed the increase in symptoms. After the 2014 VA examination and the 2014 Veterans Center records, there is no medical or lay evidence until the 2019 VA examination. The increased rating can only be assigned when it is factually shown it was warranted. With no evidence (lay or medical) in the file from 2014 to 2019, it would be purely speculative to conclude the criteria for the 50 percent rating were met from any earlier date. While the Veteran argues he believes his symptoms have been the same all along, throughout the appeal period, that is simply not true. At the beginning of the appeal period, he was working full-time, denied any disciplinary actions, and had friends with whom he socialized. The 2019 VA examination is the first evidence showing a change in his social and occupational functioning. There is no indication in the examination report or through the Veteran's statements as to when his occupational situation had changed, so the date of the examination is the proper date for the increase. In summary, entitlement to a rating in excess of 30 percent prior to October 2019 for service-connected PTSD is not warranted. The Board finds entitlement to a rating in excess of 50 beginning October 2019 for service-connected PTSD is also not warranted. In reaching this decision, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Parker N. Reynolds, 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.