Citation Nr: 21029389 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-00 278 DATE: May 13, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD), for the period prior to October 26, 2020, is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity during the period prior to October 26, 2020. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for PTSD, for the period prior to October 26, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to December 1969. The claim was previously before the Board in September 2019 when it was remanded for additional development. The Board finds there has been substantial compliance with the remand directives for the claim decided herein. Stegall v. West, 11 Vet. App. 268 (1998). In June 2019 the Veteran testified at a videoconference hearing before the Board. In March 2021, the Veteran was notified that the Veterans Law Judge (VLJ) who conducted that hearing was no longer employed at the Board, and he was offered the opportunity to have a hearing before another VLJ. The Veteran did not respond and, as he was informed in the letter, the Board assumes he did not want another hearing and will proceed with the claim. After the remand, the PTSD rating was increased to 100 percent, effective October 26, 2020. See November 2020 rating decision. As this represents a complete grant of the benefit sought on appeal, effective October 26, 2020, the Board has recharacterized the issue above. Entitlement to an initial rating in excess of 30 percent for PTSD, for the period prior to October 26, 2020. The Veteran seeks a higher evaluation for PTSD for the period prior to October 26, 2020. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's PTSD disability is currently evaluated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher, during the period on appeal prior to October 26, 2020. 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 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 rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher during the period prior to October 26, 2020. Service connection for PTSD has been in effect since April 2014. The Veteran was afforded a VA examination in June 2014 in connection with the claim for service connection and that examiner concluded the Veteran did not meet the diagnostic criteria for any mental diagnosis and did not offer an opinion on any related social and occupational impairment. The findings on examination included the Veteran's report that he had been retired since 2011. He stated that he had problems with alcohol and attendance at work after his divorce and began working the night shift so that he would stay out of the bar. He did not report problems in the recent years prior to retirement. Mental status examination showed that the Veteran was appropriately groomed and dressed. He was personable and cooperative and there were no abnormal motor movements and mannerisms. Eye contact, facial expression, and posture were appropriate. He was alert, and oriented to time, place, situation, and person. His memory for both recent and remote events appeared unimpaired. Verbal communication was appropriate in volume, content, and flow. There was no apparent disturbance in thought content, no indication of hallucinations, delusions, obsessions, dissociation, or intent to harm self or others. He reported that he experienced some thoughts related to suicide a few months prior but denied intent. He did not endorse current suicidal ideation, plan, or intent. There was no apparent disturbance in thought processes. Insight and judgment regarding current situation appeared intact. The Veteran's mood most of the time was reported to be "pretty good." Affect was full, mood appeared to be euthymic. He was not in treatment for a mental disorder and did not report clinically significant distress or functional impairment to warrant a current mental disorder diagnosis. In December 2014 the Veteran reported that prior to retiring from his last job he was having significant interpersonal strain with a coworker. He stated that he had some thoughts of suicide, but quickly added that these thoughts do not go beyond thoughts. There were no indication of plans or intent to harm himself. Mental status examination showed the Veteran to be appropriately dressed and groomed. No open distress was displayed. He was cooperative, open to structuring and refocusing. He was alert and there was no obvious hyper-alertness. He had the ability to concentrate on assessment. Speech was appropriate in volume, pace, pressure, and prosody. He was fully oriented, slightly depressed, and his affect was concordant. Thought was linear and the content was appropriate. Perceptions were normal and audio and visual hallucinations were denied. He endorsed having thoughts in the prior two weeks about being better off dead or self-harming several days. He reported that the thoughts do not get more intense and have never translated into plans of harming himself. He denied a history of suicide attempts. The provider diagnosed other specified trauma and stress related disorder due to combat engagements and alcohol use disorder. In January 2015 the Veteran was cooperative, appropriately dressed and groomed. He was initially guarded. He was alert and oriented to person, time, place, and situation. Mood was alright to pretty good. Affect was full and the Veteran denied suicidal and homicidal ideation. Speech was normal in rate and tone. Thought was linear and there were no hallucinations or delusions reported or observed. There were no perceptual disturbances and insight was moderate. There were no difficulties in cognition noted. In another January 2015 treatment note the Veteran denied current suicidal and homicidal ideation. However, he noted struggling with passive and fleeting suicidal ideation "since Vietnam" with no history of suicide attempts. In a further January 2015 treatment note the Veteran was noted to have passive suicidal ideation but no active suicidal ideation, plan, or intent. Treatment records in February 2015 show that the Veteran was casually and appropriately dressed. Interaction was variously reported as pleasant and cooperative and not agitated. He was alert and oriented to person, time, place, and situation. Mood was variously reported as mildly anxious, mostly euthymic, and little nervous. His affect ranged from congruent to full. Speech was normal in rate and rhythm and normal in rate and tone. Thought process was logical, linear, and coherent. He denied suicidal and homicidal ideation. Insight ranged from good to moderate. Judgement was good. There were no disturbances in cognition and attention, concentration, and memory were within normal limits. In a February 2015 treatment note the Veteran reported that he had suicidal thoughts 1 to 2 weeks prior but denied any intent or plan. He had not had serious thoughts of suicide for approximately 30 years. Upon VA examination in March 2015 the Veteran was noted to have occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner identified that the Veteran met the criteria for PTSD. Anxiety was reported. The Veteran was open and cooperative during the interview. His hygiene and grooming were adequate. He was alert and fully oriented. Thought process was logical and goal-directed and he reported no history of hallucinations. Speech was calm and his affect was full. He did not evidence any paranoid ideation and thought content consistent with delusions. He reported no history of obsessive or ritualistic behaviors. He responded adequately to abstract proverbs and his fund of knowledge was good. In a March 2015 treatment note the Veteran's symptoms included irritability, disrupted sleep, and some hypervigilance. He denied insomnia, audio and visual hallucinations, paranoia, and homicidal ideation. He endorsed some passive suicidal ideation but denied active suicidal ideation, plan, or intent. Treatment records in March 2015 and April 2015 showed the Veteran to be cooperative, appropriately dressed and groomed, engaged, pleasant, and good eye contact. He was alert and oriented to person, time, place and situation. His mood was good to mildly dysphoric to mostly euthymic and his affect was full to congruent, mildly constricted to congruent, normal range. The Veteran denied suicidal and homicidal ideation. Speech was reported as normal in rate and tone, and normal in rate and rhythm. Thought process was logical, linear, and coherent and there were no hallucinations, delusions, paranoia or perceptual disturbances. Insight was moderate to good and there were no difficulties noted to cognition. Judgement was reported to be good and memory was within normal limits. Treatment records in June 2015 and July 2015 show the Veteran to be cooperative, appropriately dressed and groomed, engaged, pleasant, cooperative, and motivated. He was alert and oriented to person, time, place and situation. His mood was characterized as good, getting better, okay, and "getting alright," and his affect was full. The Veteran denied suicidal and homicidal ideation. Speech was normal in rate and tone. Thought process was linear and there were no hallucinations, delusions, or perceptual disturbances reported or observed. Insight was moderate and there were no difficulties noted to cognition. Treatment records in August 2015, October 2015, November 2015, February 2016, April 2016, May 2016, July 2016, October 2016, May 2017, and July 2017 show the Veteran to be cooperative and friendly. He was groomed and his behavior was appropriate. He was alert and oriented to person, time, place, and situation. Mood varied from "depends" to euthymic. Affect was full to congruent. The Veteran did not have suicidal or homicidal ideation. Speech was normal in rate and tone. Thought process was variously linear and linear, logical, and coherent. There were no hallucinations, delusions, or perceptual disturbances. Insight was moderate and there were no difficulties noted with cognition. During this period the Veteran was noted to have gone on a golf trip with friends, continued to go out with a group from the senior center, to have spent time with friends golfing, bowling, and going to breakfast daily. In January 2017 the Veteran reported a fishing trip. In July 2017 reported spending time with friends and planning a trip. In September 2018 the Veteran continued off previous medications, per his request; felt stable overall at that time. He had ongoing moderate PTSD symptom burden overall. He had triggers of helicopters, fireworks, random loud noises; still somewhat jumpy at baseline. He was doing fine going to the store and shopping, and avoided big crowds. The Veteran denied worry/anxiety; stated mild depression at baseline. The Veteran denied suicidal and homicidal ideation and denied any recent anger issues. At the June 2019 hearing, the Veteran reported that he was always going to have suicidal thoughts but no intent. In June 2019 the Veteran was noted to have ongoing moderate PTSD symptoms. The Veteran reported going bowling with Veterans in June 2019. In a letter from a friend, received in July 2019, it was reported that the Veteran always liked to face toward doors. He liked to be alone at night and felt safe in dark corners. He did not care for crowds and liked his space. In August 2019 the Veteran reported that he goes rifle shooting and bowling. In November 2019 the Veteran reported that had had panic attacks in the past. The Veteran reported that he had no panic attacks and was working on getting out of the house more. He was planning a trip to Greece with friends, planned on going golfing, and still went shooting. In a January 2020 opinion, a VA psychologist reviewed a November 2019 VA treatment record that showed the Veteran's PTSD symptoms continued to be well-managed and he challenged himself frequently to complete activities. The opinion provider further noted that the Veteran's recent treatment records indicated that he was socially active and had many leisure activities which were unimpaired by his PTSD symptoms. The examiner concluded that there was no current evidence to suggest that the Veteran would be likely to experience any occupational impairments associated with his PTSD symptoms. The Veteran's PTSD symptoms were in the mild range. In February 2020 the Veteran reported that he continued to spend time with friends. In April 2020, May 2020, June 2020, July 2020, and September 2020 the Veteran denied suicidal and homicidal ideation and his thought was linear. He continued to speak with friends. In a June 2020 treatment note the Veteran was reported to continue off previous medications, per his request and he felt stable overall at that time. However, he reported ongoing anxiety/depression and hypervigilance that continued to affect his life quite significantly. He had ongoing moderate PTSD symptom burden overall. Based on a complete review of the record, the Board finds that the severity, frequency, and duration of the Veteran's symptoms prior to October 26, 2020, do not more nearly approximate the rating criteria for an evaluation of 50 percent or higher. During the period on appeal the Veteran's symptoms have been described as mild to moderate. The Veteran was noted to have irritability, disrupted sleep, anxiety, depression, and some hypervigilance. His mood varied from good and euthymic to alright to slightly depressed and anxious. His affect ranged from full to mildly constricted. He reported triggers of his symptoms but was fine going to the store and shopping. He avoided big crowds. He denied panic attacks other than in the past at Walmart. During the period on appeal the Veteran consistently interacted with other individuals, including in bowling, shooting, and planning trips. In addition, during the period on appeal the Veteran has been noted to have continued off SSRI medication. Furthermore, in January 2020 found that there was no current evidence to suggest that the Veteran would be likely to experience any occupational impairments associated with his PTSD symptoms. During the period on appeal the Veteran's symptoms do not include 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective relationships; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or inability to establish and maintain effective relationships. The Board acknowledges that suicidal ideation is contemplated by the 70 percent criteria and is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Although the Veteran has reported that he had thoughts of suicide and there is a notation of passive suicidal ideation during the period on appeal, the Veteran has denied active suicidal ideation, intent, and plan throughout the period on appeal. Treatment records and examinations throughout the period on appeal indicate denials of suicidal ideation. Furthermore, in February 2015 the Veteran reported that he had not had serious thoughts of suicide for approximately 30 years. Therefore, the Board finds that the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by 70 percent or 100 percent disability ratings, and do not indicate a severity of the Veteran's disability in excess of the currently assigned 30 percent, for the period prior to October 26, 2020. The preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for an evaluation in excess of 30 percent disabling. Therefore, the appeal must be denied. M.E. LARKIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert J. Burriesci, 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.