Citation Nr: 21030024 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-00 659 DATE: May 17, 2021 ORDER Entitlement to a disability rating of 50 percent, but no more, for posttraumatic stress disorder (PTSD), effective November 20, 2012, is granted. FINDING OF FACT Effective November 20, 2012, the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability rating of 50 percent, but no more, for PTSD have been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) from a March 2014 rating decision which continued a 30 percent evaluation for PTSD. In July 2015, the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing is of record. In May 2016, the Veteran was informed that he could request an additional hearing because the Veterans Law Judge who conducted the hearing was no longer employed by the Board. In July 2016, the Veteran returned the hearing clarification options form signed, but without selecting one of the options. Based on the foregoing, the Board finds that an additional hearing is not warranted. In June 2018, the Board remanded for additional development. In March 2020, the Board remanded for the agency of jurisdiction (AOJ) to update the Veteran's VA treatment records and provide a new VA examination. In March 2020, the AOJ updated the Veteran's VA treatment records. In June 2020, the AOJ provided the Veteran with a new VA examination. Accordingly, the Board finds substantial compliance with the March 2020 remand. Entitlement to a disability rating of 50 percent, but no more, for PTSD, effective November 20, 2012, is granted. The Veteran currently has a 30 percent disability rating for PTSD, effective December 14, 2009. In written pleadings and at the July 2015 hearing, the Veteran and his representative generally assert that a higher evaluation is warranted, but do not make any specific assertions. The rating criteria to evaluate PTSD can be found in the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411. In considering this rating criteria, the Board must conduct a "holistic analysis" that assesses the severity, frequency, and duration of the signs and symptoms; quantifies the level of occupational and social impairment caused by these signs and symptoms; and assigns the evaluation that most nearly approximates the level of occupational and social impairment. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). A 30 percent disability rating is warranted when there is 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, DC 9411. A 50 percent disability rating is warranted when there is 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; difficulty in establishing and maintaining effective work and social relationships. See id. A 70 percent disability rating 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. See id. The percentage ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the veteran's disability picture more nearly approximates the criteria for the higher evaluation. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. For an increased rating claim, the effective date for an award is generally the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(o)(1). An exception applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the increased rating claim. See 38 C.F.R. § 3.400(o)(2). Under these circumstances, the effective date of the award is the earliest date at which it was factually ascertainable that an increase occurred. See id. Because the Veteran filed his increased rating claim on November 6, 2013, the start of the period on appeal is November 6, 2012. Before discussing the evidence of record, the Board notes that it will not mention Global Assessment of Functioning (GAF) scores. Effective August 4, 2014, VA adopted the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), which eliminated the use of GAF scores. See 79 Fed.Reg. 45093, 45097 (Aug. 4, 2014). This new rule applied to all claims certified to the Board after August 4, 2014. See 80 Fed.Reg. 14308 (Mar. 19, 2015). Because the Veteran's claim was certified to the Board in May 2015, the DSM-5 applies, and GAF scores are not to be considered. At a November 20, 2012, VA psychiatric session, the Veteran reported that he had a difficult past several months. He received a charge of driving under the influence in July 2012, at which time, he also mentioned suicidal thoughts and was forced to go to the hospital. He currently reported some passive suicidal thoughts without any plan or intent. He reported anger and resentment over not being more recognized by the government for his Vietnam service. On mental status examination, the Veteran had a relatively euthymic mood that was appropriate and with full range. He also had goal directed thoughts, good eye contact, and normal speech. He was described as both pleasant/cooperative and angry. A December 2012 VA mental health record stated that the Veteran was currently working as a third-party service for moving companies. He reported very close relationships with his two daughters, stepson, and five grandchildren. He independently completed activities of daily living. On mental status examination, the Veteran appeared well dressed and had appropriate behavior. Between December 2012 and November 2014, the Veteran participated in Veteran's Treatment Court. When the issue of suicide was mentioned in these entries, the social worker stated that there was no report of suicidality or increase in suicide risk factors during the contact that warranted further risk assessment. Between June and September 2013, the Veteran denied suicidal ideations at individual counseling sessions. At a January 2014 VA examination, the Veteran reported that his PTSD was much, much worse since his last examination. The only symptom he reported was feeling disrespected when he returned home and frustrated that he never got a proper homecoming. He reported having depression for years that got worse after his wife died in 2007. He reported daily panic attacks, but the examiner noted that the Veteran's records did not support this and that the Veteran's description was not consistent with a panic attack. He denied suicidal ideations since the last examination. He was able to manage basic activities of daily living and was able to clean, do laundry, cook, make repairs, run errands, and shop with impairment. The Veteran owned a small moving company that had one to five part-time employees. He worked between five hours per week to four to six hours a day in the summer when it was busier. He reported not having problems getting along with employees or customers. On mental status examination, the Veteran had good personal hygiene, a normal affect, normal eye contact, normal speech, logical and coherent thought processes, sufficient impulse control, unimpaired judgment, and adequate self-care. The examiner stated that the Veteran was often evasive during the interview when asked to describe specific symptoms and their frequency. The examiner stated that the Veteran's reported daily intense PTSD-related symptoms were inconsistent with what he had been reporting, and what had been assessed, by his providers over the past year. The examiner opined that the Veteran's PTSD was not severe enough to interfere with occupational and social functioning or to require continuous medication. At various VA sessions, to include March 2014, July 2015, November 2015, January 2016, September 2016, November 2017, and June 2018, the Veteran denied having thoughts of taking his life. At the July 2015 hearing, the Veteran asserted that he was entitled to a higher rating due to all the things that he lost due to his service. He reported experiencing anxiety and, while he was pretty good on a common day, he would lose it when something triggered his anxiety. He reported trying to be friendly and going out into society. He reported that he needed to be somewhat friendly with his customers, but that it was hard when people did not treat him like a human being. He reported panic attacks only with noise, such as fireworks or backfires, about once a week. He reported losing track once a day when people explained complex stuff to him. He reported daily short-term memory issues. He denied that things got so severe that he started fights. He reported that he did not act as harshly as he used to, but that he told people off. At a November 2016 VA session for chronic physical impairments, the Veteran reported that he worked with a moving company doing crating and connecting and disconnecting appliances. He reported that he could not do his business any longer because he was not making money and frequently had to pay people to do his work. In January 2017, a VA physician wrote a letter indicating that, due to an emotional disability, the Veteran had certain limitations coping with what would otherwise be considered normal, but significant to him in day to day situations. The provider recommended that the Veteran obtain an emotional support animal. In September 2018, the Veteran denied suicidal ideations. At an April 2019 VA examination, the Veteran reported that he thought about Vietnam every day. He reported not liking crowds and not leaving his house except to go to the store or to work. He denied any current suicidal ideations. He denied any difficulties in taking care of himself. He reported an excellent relationship with all his children and grandchildren. He reported having one friend. The Veteran was self-employed for the past 13 years and loved his job as a third-party service for moving companies. On mental status examination, the Veteran was dressed appropriately, was cooperative, and had good hygiene. He had appropriate eye contact, normal speech, good judgment, a good mood, and a euthymic affect. The examiner opined that the Veteran's PTSD resulted in 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. In June 2019, the Veteran reported that he was actively working in his moving business. In December 2019, the Veteran reported a depressed mood at a routine VA follow-up session. The Veteran expressed frustration with VA mental health providers related to his increased rating claim. He became very emotional, and he started pacing around the room and speaking with a raised voice. The Veteran did not threaten the provider and apologized multiple times for his outburst. The Veteran denied suicidal ideations. At a June 2020 VA examination, the Veteran reported experiencing the following symptoms: depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideations. The Veteran was currently self-employed as a mover specialist. On mental status examination, the Veteran was friendly and cooperative and denied current suicidal ideations. The examiner noted that the Veteran appeared to be exaggerating some of his symptoms by noting how fellow veterans were telling him that he was not properly rated for his disability. The examiner stated that the Veteran appeared to be an inconsistent reporter. The examiner opined that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. In an August 2020 addendum opinion, the June 2020 examiner explained that it had been noted by VA that the inclusion of information noting the possibility of symptom exaggeration was to help the rater determine the level of disability. The examiner noted the potential of symptom exaggeration given that this was a disability examination with potential impact on income. The examiner noted the symptoms endorsed by the Veteran, but stated that the Veteran presented as an inconsistent and unreliable reporter providing contradictory information. The examiner noted that the Veteran claimed suicidal ideations, but attempts to clarify these comments were unsuccessful. In a second August 2020 addendum opinion, the June 2020 examiner stated that the June 2020 examination was valid to evaluate the Veteran's condition, but the rater was cautioned to use this information while considering that the Veteran appeared to be exaggerating his symptoms, to include his statement of difficulty in establishing and maintaining effective work and social relationships. Based on the evidence of record, the Board finds that the Veteran's PTSD symptoms more nearly approximate the criteria for the 50 percent disability rating when considering the benefit of the doubt. See 38 C.F.R. §§ 4.3, 4.7. The evidence of record shows that the Veteran often worked during the period on appeal, to include owning his own business and having part-time employees. While the Veteran reported difficulties with others who did not treat him like a human being, he reported that he got along with his employees, had good relationships with his family, had a friend, and generally got along with customers. While there was evidence that the Veteran experienced anxiety, he generally reported no more than weekly panic attacks, and there was some evidence that the symptoms he endorsed were not panic attacks as that term is understood in the psychiatric community. The Veteran reported some mood and affect abnormalities that could indicate disturbance in mood and a flattened affect. The Veteran consistently had normal speech. The medical providers noted the Veteran had adequate judgment and impulse control, and the Veteran denied getting into fights. While the January 2014 and April 2019 VA examiners provided opinions consistent with either a 10 or 30 percent disability rating, the June 2020 VA examiner provided an opinion consistent with a 50 percent disability rating. A 50 percent disability rating is also consistent with, or more restrictive than, the January 2017 letter indicating that the Veteran had certain limitations coping with what would otherwise be considered normal, but significant to him in day to day situations. The Board notes that January 2014 and June 2020 VA examiners expressed some concern about possible symptom magnification. Given the June 2020 VA examiner's opinion and the benefit of the doubt rule, the Board finds that, despite the concern about possible symptom magnification, a holistic analysis of the lay and medical evidence above warrants a 50 percent disability rating. The Board finds that the Veteran's PTSD symptoms did not more nearly approximate the level of occupational and social impairment contemplated by a 70 percent disability rating. While the Veteran reported some difficulty with complex instructions and with short-term memory, the Veteran often worked, to include running a business that had employees. While there was some evidence of difficulties with others who did not treat him like a human being, the Veteran had good work and personal relationships, had adequate impulse control, and denied fights. The totality of the evidence did not show unprovoked irritability with periods of violence or an inability to establish and maintain effective relationships. Neither the Veteran's reports nor the medical evidence suggested near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. The evidence of record showed that the Veteran had normal speech and personal hygiene. The Board notes that, over a nine-year period, the Veteran reported passive suicidal ideations for a period in 2012 and suicidal ideations at the June 2020 VA examination. The Board also notes that the Veteran consistently denied suicidal ideations between these two points, and there is evidence of symptom exaggeration that calls into question the existence or extent of the suicidal ideations reported at the June 2020 VA examination. The fleeting suicidal ideations over this nine-year period do not rise to the level considered by a 70 percent disability rating. Therefore, the Board finds that a holistic analysis of the medical and lay evidence does not warrant an evaluation of 70 percent. The Board agrees with the Veteran's and his representative's generalized assertions that a higher rating is warranted, but only to the extent of a 50 percent disability rating. The Board has explained above that a 70 percent evaluation is not warranted based on a holistic analysis of the medical and lay evidence. (Continued on the next page.) The Board further finds that November 20, 2012, is the appropriate effective date for the increased evaluation. The Board notes that this treatment record shows a factually ascertainable increase in disability within the one-year period preceding the receipt of the Veteran's November 6, 2013, increased rating claim. See 38 C.F.R. § 3.400(o)(2). Accordingly, the Board grants an increased evaluation of 50 percent, but no more, for PTSD, effective November 20, 2012. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ormson, 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.