Citation Nr: 21029992 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-02 926 DATE: May 17, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depressive symptoms is denied. FINDINGS OF FACT 1. The Veteran's PTSD with depressive symptoms has been manifested by occupational and social impairment with reduced reliability and productivity with symptoms such as 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 work like setting; sleep impairment, difficulty with concentration and memory, disturbances of motivation and mood, and periods of irritability with outbursts of anger. 2. The Veteran's PTSD with depressive symptoms do not more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; or total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for PTSD with depressive symptoms have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1968 to July 1971. The Veteran's claim was remanded by the Board of Veterans' Appeals (Board) in November 2019 and October 2020. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In a July 2020 rating decision, the VA Regional Office (RO) granted a 50 percent rating for PTSD with depressive symptoms (hereinafter PTSD) effective September 3, 2014. As this grant, however, did not represent a total grant of benefits sought for the entire period on appeal, the Veteran's claims for an increased rating for his PTSD remains pending before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Entitlement to a disability rating in excess of 50 percent for PTSD with depressive symptoms Disability evaluations (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). 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Here, the Board finds that the Veteran's symptoms related to his PTSD have not significantly changed throughout the appeal period and a uniform rating is warranted. The Veteran's PTSD is rated under Diagnostic Code 9411 and utilizes the General Rating Formula for Mental Disorders (General Rating Formula), which is used to assign ratings ranging between 0 and 100 percent. Under the General Rating Formula, a 50 percent rating is assigned for 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 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assigned when a psychiatric disorder causes 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. Id. A 100 percent disability rating is assigned 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, or for the veteran's own occupation or name. Id. In September 2014, the Veteran filed for an increased evaluation for his service-connected PTSD. In August 2019, the Veteran provided testimony at a Board hearing regarding his claim for a higher rating for his condition. The Veteran stated that there are periods that his psychiatric symptoms cause him to isolate from other people. He "just take[s] the dogs for a walk and stay[s] home." See Hearing Testimony, p.3. He also reported problems sleeping, including periods of insomnia; irritability; difficulty with his short-term memory; obsessive behavior such as checking the perimeter of his house, and suspiciousness of others. Impaired judgment and impulse control were also reported by the Veteran. He stated that recently, while he was volunteering at a food pantry, someone was being disrespectful; as a result, he dropped "their food on the ground and left." See Hearing Testimony, p.4. He also indicated that he regularly neglects his personal hygiene and has trouble remembering the last six months that he served in Vietnam. In February 2015, the Veteran underwent a VA examination of his PTSD. During the examination, the examiner noted that the Veteran was married with five children. He reported that gets along well with his children and that is his marriage is "good." He stated that he sees friends at church on Wednesdays and Sundays, but that he primarily socializes with his family. The Veteran reported that he is uncomfortable in crowds and that he does not like loud noises. He reported that he was having problems with fragmented sleep due to dreams, as well as, sleep apnea; however, he reported that dreams were not occurring "nearly as often" as they previously had been. The examiner noted that the Veteran's mood was mildly dysthymic with a mildly restricted affect. Irritability with outbursts was noted when "he's working on something and it doesn't go right." The examiner reported a history of suicidal gesturing, but it was reported that suicidal behavior and ideation were not present. The examiner noted that the Veteran required frequent redirection needed throughout evaluation to keep the Veteran focused on pertinent information. Mild memory loss, such as forgetting names, directions or recent events was reported. The examiner opined that the Veteran's psychiatric disorder caused occupational and social impairment that results in an 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. In January 2019, the Veteran underwent another VA examination regarding his PTSD. The examiner stated that the Veteran had been married for 28 years and that the Veteran described their relationship as "very good" and his wife agreed. He reported having five children (age range from 42-37) with many grandchildren and great grandchildren. The Veteran reported frequent contact with three of his children, but almost none with the other two. He reported enjoying hunting and fishing. He reported having a couple of friends that he's known for 40 years and a close a church community. The Veteran reported attending psychotherapy at the Audie Murphy VA for about six months a couple years prior; however, he stated that he was currently treating his condition with medication (sertraline) prescribed by his primary care physician. The examiner noted that the Veteran demonstrated current symptoms that included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The examiner denied current suicidal and homicidal ideation and stated that there were no signs of perceptual disturbances. The examiner opined that the Veteran's psychiatric disorder caused occupational and social impairment that results in an 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 Veteran was also evaluated during a VA examination in January 2020. The VA examiner again opined that the Veteran's psychiatric disorder caused occupational and social impairment that results in an 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, however, indicated an increase of the Veteran's PTSD related symptoms, despite reporting a "marked" decrease in his depressive related symptoms. The examiner noted the Veteran's report that although he gets sad from time to time, but he's "nowhere near as bad" as he used to be. The Veteran's symptoms were reported to include depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a work like setting. The examiner reported that "noises have become particularly disruptive to the Veteran, even the radio being on." The examiner stated that he's more easily distracted and more easily irritated. The examiner stated the Veteran could not be around groups of persons, including his grandchildren or people he is close to. Suicidal ideations, though, were reported to be few and far between with no additional psychiatric hospitalizations. In November 2020, the Veteran submitted a narrative completed by G.B.H., a psychologist, that provided treatment to the Veteran in 2016 and 2017. The psychologist noted that the Veteran reported a low tolerance for noise, episodic mood shifts, and a tendency to be easily angered; however, the psychologist stated the Veteran was not thought of as a threat to harm others. The psychologist noted that the Veteran had a past history of suicidal ideations and that he had attempted suicide once by overdose of prescribed medications, but the G.B.H. reported that the Veteran was not thought to be a suicide risk while enrolled in his program. The psychologist opined that the Veteran was seen to have "significant" symptoms of combat-related PTSD secondary to his tour in Vietnam. Upon review of the evidence of record, the Board finds that the Veteran's PTSD condition has not been manifested by social and occupational impairment that warranted a rating in excess of 50 percent during the period on appeal. The Board acknowledges the Veteran's arguments that he warrants a disability rating in excess of the presently assigned 50 percent for his PTSD, and that he suffers from symptoms of PTSD that include irritability toward others, difficulty sleeping, and problems with short term memory. While the November 2020 letter from the Veteran's prior psychologist indicates that the Veteran suffers from "significant" symptoms related to his PTSD, the Board finds that the Veteran's symptoms, including those described by G.B.H. are contemplated by his current 50 percent rating and a rating in excess of 50 percent is not warranted. The Board finds that the preponderance of the evidence reveals that the Veteran's PTSD with depressive symptoms is manifested by symptoms that include: depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, suspiciousness, mild memory loss, and irritability. Multiple VA examinations and a private narrative completed by the Veteran's prior psychologist, however, do not demonstrate that the Veteran's PTSD results in occupational and social impairment with deficiencies in most areas warranting the assignment of a 70 percent rating. The Board finds probative the opinions of the three VA examiners that opined that the Veteran's condition caused 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. Further, none of VA examiners, or the narrative provided by the Veteran's prior psychologist, reported impairment in the Veteran's judgment or thinking. While the Veteran's prior psychologist reported that the Veteran had a prior history of suicidal ideation and a prior suicide attempt, he reported that the Veteran was not thought to be a suicide risk while enrolled in his program. Each of the VA examiners reported that suicidal ideation and intent were not present during the appeal period. The evidence also does not indicate that the Veteran's condition impacts family relations. During his 2019 VA examination the Veteran reported that he had been married for 28 years and he and his wife described their relationship as "very good." He also reported frequent contact with three of his children and that he was part of a close a church community. While the January 2020 examiner reported that the Veteran was unable to be around his grandchildren this was only reported with regard to large groups. When considering all of the Veteran's reported symptoms in concert with observations during the examinations, the examiners all reported a degree of occupational and social impairment that was less severe than occupational and social impairment with deficiencies in most areas. The Board finds these opinions expressed in the examination reports highly probative as the examiners explained their findings in light of the psychiatric examinations that were conducted. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board has considered the Veteran's lay statements as to the current severity of his PTSD. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic code. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the preponderance of the evidence is against a finding that the Veteran's disability more nearly approximates the criteria for a higher rating, a higher disability rating for his service-connected PTSD with depressive symptoms is not warranted. 38 C.F.R. §§ 4.3, 4.7. Duties to Notify and Assist The VCAA, codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As noted above, the Board finds that, at the very least, substantial compliance with the November 2019 and October 2020 Board remand directives was obtained. Stegall, 11 Vet. App. 268 (1998); Dyment, 13 Vet. App. 141, 146-47 (1999). Particularly, the Board notes that to the extent that these remands requested that any outstanding Vet Center records be obtained, the Board notes that the evidence associated with the record indicates that the Myrtle Beach Vet Center denied the existence of any outstanding treatment records and the Veteran has not identified any other location of Vet Center treatment, despite requests for such information in December 2019 and October 2020. The Board notes that "[t]he duty to assist is not always a one-way street," and claimants are expected to comply with reasonable requests. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board also finds the VA examinations of record, particularly the January 2019 and January 2020 examinations, to be adequate to resolve the increased rating claim on appeal. The Board finds these examinations, in combination with the treatment records associated with the claims file, to be comprehensive and sufficient in addressing the severity of the Veteran's symptoms and resulting functional impairment caused by the Veteran's PTSD during the period on appeal. In this regard, it is noted that these evaluations were provided following review of the claims file, thorough examinations, and interviews of the Veteran. See Nieves-Rodriguez, 22 Vet. App. 295 (2008). Additionally, the Veteran has not raised any issues with the duty to notify or duty to assist. 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.") K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson, 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.