Citation Nr: 21030117 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 14-13 962 DATE: May 17, 2021 ORDER Prior to February 25, 2020, entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. From February 25, 2020, entitlement to an initial disability rating in excess of 70 percent for PTSD is denied. REMANDED Entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure, is remanded. Entitlement to service connection for hypertension, as secondary to diabetes mellitus, is remanded. FINDINGS OF FACT 1. Prior to February 25, 2020, the Veteran's PTSD has not been manifested by occupational and social impairment with reduced reliability and productivity. 2. From February 25, 2020, the Veteran's PTSD has not been manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to February 25, 2020, the criteria for an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2020). 2. From February 25, 2020, the criteria for an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) from July 2013 and October 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board previously remanded this matter in November 2019 and January 2020 for additional evidentiary development. 1.-2. Entitlement to a higher initial rating for PTSD, currently evaluated as 30 percent disabling prior to February 25, 2020, and 70 percent thereafter Service connection for PTSD was established in an October 2014 rating decision that is the subject of this appeal and assigned an initial rating of 30 percent, effective May 5, 2014, under 38 C.F.R. § 4.130, Diagnostic Code 9411. A July 2020 rating decision increased the initial rating to 70 percent, effective February 25, 2020. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411. In relevant part, the rating criteria are as follows: A 30 percent rating is assigned for 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, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. Id. 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 such as, retention of only highly learned material and 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. Id. A 70 percent rating is warranted when there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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; and the inability to establish and maintain effective relationships. Id. 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 behaviour; 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. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 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 solely based on social impairment. 38 C.F.R. § 4.126(b). 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. A veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Section 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 118. The Veteran asserts, in essence, that a higher initial rating is warranted for his PTSD because his symptoms have worsened and are more severe than the assigned ratings reflect. See August 2015 Board hearing testimony and November 2014, October 2019 and December 2020 statements. Further, in the November 2014 statement, the Veteran asserted that the October 2014 VA examination did not accurately capture the effects of his PTSD on his everyday life. During the August 2015 Board hearing, the Veteran reported symptoms of poor comprehension, trouble communicating, difficulty dealing with reality, difficulty concentrating, poor judgment and mood, sleep difficulties, continuous panic, depression, difficulty controlling his emotions, difficulty adapting to stressful circumstances, inability to establish and maintain personal relationships, including isolating from family and friends, and an inability to work because of his Parkinson's disease, stating that he lost his job because they wanted to make sure he did not hurt himself or others. He testified that he has never been violent, was not concerned about self-harm or have suicidal ideation. Entitlement to an initial rating in excess of 30 percent for PTSD prior to February 25, 2020 For the period on appeal period prior to February 25, 2020, the issue before the Board is whether the Veteran's PTSD symptoms cause a level of impairment that warrants a 50 percent or higher disability rating. After reviewing the medical and lay evidence of record, to include the October 2014 and July 2016 VA examination reports, VA and private treatment records and the Veteran's statements, the Board finds that, prior to February 25, 2020, a disability rating in excess of the currently-assigned 30 percent rating is not warranted because the preponderance of evidence does not show occupational and social impairment with reduced reliability and productivity. Rather, the frequency, severity and duration of the PTSD symptoms reflect occupational and social deficiencies 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). The record reflects a diagnosis of PTSD and that the Veteran is not prescribed medication to treat his PTSD. See October 2014 and July 2016 VA examination reports, and August 2015 Board hearing transcript. With respect to occupational functioning, the record shows that prior to February 25, 2020, the Veteran was able to effectively establish and maintain positive occupational relationships; it does not show occupational impairment with reduced reliability and productivity. An April 2014 VA treatment record indicates the Veteran reported anxiety related to current life stressors (Parkinson's disease, diabetes and hypertension); that he was being asked by his employer not to work due to the determination that his Parkinson's disease is a safety risk to employment; that he had been on paid leave for approximately 6 weeks and he will be paid a full-time salary until he can retire in July 2014 when he turns 65. A May 2014 VA treatment record notes that the Veteran reported experiencing depression related to a serious and chronic medical diagnosis interfering with his ability to perform work and was worried about his financial future; the assessment was improved mood despite continued worry about his financial future. During the October 2014 VA examination, the Veteran reported he began working after service and continued to work until the present, including with a water/sewer contractor for 17 years and a heavy duty vehicle mechanic, where he is currently employed and has worked since 2003; that he was retiring in October 2014 due to symptoms associated with his Parkinson's disease and balance problems; and that he would love to keep working and does not know what he will do after he retires. During the July 2016 VA examination, the Veteran reported he retired two years prior due to diabetes, Parkinson's disease and a heart attack and that "they got wind at work about the Parkinson's," asked him to stay home and gave him a severance package; and that his occasional thoughts of the stressor did not change in frequency since his retirement, although he may have gotten more comfortable coping with it. He reported no career plans or plans to volunteer or engage in voluntary services. Thus, the record shows the Veteran was effectively able to maintain full-time employment prior to 2014 and that, although he stopped working in 2014 when he retired at age 65, his retirement was attributed to Parkinson's disease, not PTSD. The record does not suggest, nor has the Veteran alleged, that he was unable to maintain effective employment due to his PTSD symptoms. With respect to social functioning, the record shows positive family and social relationships; it does not show difficulty establishing and maintaining effective social relationships. During the October 2014 and July 2016 VA examiners, he reported being married to his wife since 1972; there were no major marital upheavals; and he had a good relationship with his three adult children. During the October 2014 examination, he denied emotional distancing or numbing with his wife or children, stated he did not have trouble showing affection and reported having regular contact with multiple siblings. While, during both examinations, he identified no social activities or avid recreational pursuits or interests, he denied any loss of interest in previously enjoyable experiences and reported that he listens to music at a neighbor's house on Friday nights and had attended a reunion of service members onboard an Alaskan cruise, where there were four to five close friends. He also stated during the October 2014 VA examination that he enjoys projects and fixing things. During the July 2016 VA examination, he reported his daily activities are walking the dog, getting the mail and watching television; that he had no career or volunteer service plans; and that his nephew tries to get him to go fishing and hunting. An April 2014 VA mental health evaluation performed for the purpose of establishing a mental health diagnosis as part of the process for requesting a VA examination for PTSD and for diagnostic treatment shows the Veteran reported diminished pleasure in all/almost all activities most of the day and has to force himself to do things he needs to do like walking and cleaning out the garage; however, he also reported that he lives with his wife in the home they own since 1980; enjoys spending his free time fishing, doing outdoor activities, working on cars he owns and helping friends with their cars; that he goes to a neighbor's house on Friday nights; that his relationship with his wife and children is "good;" and he denied problems with self-care and activities of daily living. The examiner noted that there was a great deal of secondary gain (financial) in the evaluation. The Board has reviewed and considered whether the Veteran's reported symptoms for the period prior to February 25, 2020 support a higher rating. In this regard, during the October 2014 and July 2016 VA examinations, the Veteran endorsed symptoms of depressed mood, anxiety and chronic sleep impairment; and during the October 2014 VA examination, he endorsed suspiciousness. Also, during both examinations, the Veteran endorsed triggering events, avoidance of the traumatic event, avoidance of enclosed places and intrusive thoughts that he blocks out; he denied hypervigilance. While both VA examiners noted the Veteran endorsed difficulty remembering important aspects of the in-service stressor, the Veteran denied current problems with concentration, which he described as "great when he gets locked in" during the October 2014 examination and as "ok" during the July 2016 examination, and the examiners noted normal recent and remote memory. Further, while the Veteran reported irritability and anger in April 2012, September 2012 and October 2012 VA treatment records, the Veteran described his temper as good during the October 2014 VA examination and denied irritability during the July 2016 VA examination. During both VA examinations, he denied physical violence, aggression and self-destructive or reckless behavior, and the record does not suggest unprovoked irritability or violence, or history of legal or behavioral actions. Further, the VA examiners noted the Veteran functioned independently, appropriately and effectively; managed his own finances; maintained personal appearance and hygiene; was pleasant and cooperative; exhibited unremarkable speech and demeanor; was fully oriented with intact judgement and insight; had good eye contact; exhibited linear and organized thought processes; and maintained effective family and work relationships. See October 2014 and July 2016 VA examination reports. The record does not show flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks; difficulty understanding complex commands; or impaired judgement or abstract thinking. The Board notes that the September 2014 and July 2016 VA examiners characterized the Veteran's symptoms as causing 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, which is consistent with a 30 percent disability rating. VA and private treatment records prior to February 25, 2020 reflect symptoms consistent with, and no worse than, those shown on the October 2014 and July 2016 VA examinations. Mental status and physical examinations performed prior to February 25, 2020, consistently show the Veteran denied difficulty with concentration, numbness or detachment, hallucinations, delusions, unusual thought content and destructive or reckless impulses; and the examinations showed the Veteran arrived on time; was well-groomed, appropriately dressed, pleasant and cooperative, fully oriented with intact judgment and insight, exhibited normal speech and affect, linear and organized thought processes, a calm mood, and good judgment, eye contact and recent and remote memory. See VA treatment records in April 2012, September 2012, October 2012, February 2013, May 2013, April 2014, May 2014 and December 2014; see also August 2013, December 2014, January 2015, July 2015, and February 2016 private treatment records. May 2013 and July 2015 private treatment records associated mild memory loss impaired remote memory and memory difficulty, respectively, with Parkinson's disease. See 38 C.F.R. § 4.14 (the use of manifestations not associated with the service-connected disability to evaluate the service-connected disability is prohibited). Additionally, while an April 2014 VA treatment record notes that the Veteran reported irritability and anger without reason and that his symptoms affect his social functioning, the record also reflects that the Veteran denied destructive or reckless impulses or disassociated phenomenon; there is no evidence of psychotic processes; and the Veteran was consistently alert and oriented to time, person and place. See April 2014, January 2019, April 2019, June 2019, August 2019, November 2019, January 2020, January 2020 and January 2020 VA treatment records. The Board acknowledges passive suicidal ideation was reported during the October 2014 VA examination and in an April 2014 VA treatment record; however, the evidence does not show intent or gesture. In this regard, during the October 2014 VA examination, the Veteran endorsed having passive suicidal ideation when he was first diagnosed with Parkinson's disease because he felt like he would be burdening others, although he did not think it seemed like a solution. An April 2014 VA treatment record notes suicidal ideation attributed to worry over siblings with serious illness and that the Veteran wished it was him instead of them. However, the clinician noted the Veteran was future oriented during the appointment and appeared to be in the action stage of change at that time. One month later, a May 2014 VA treatment record notes the Veteran hiked nearly every day, had a new haircut, identified working on his truck and around the house and had improved mood despite worrying about his financial future. During the July 2016 VA examination, he denied suicidal ideation, gestures or attempts in the past two years. Further, the Veteran denied suicidal ideation during VA treatment in October 2012, March 2014, May 2014, November 2019, January 2020, January 2020 and January 2020. Ultimately, it is the impact on functioning that results from the symptomatology that dictates the evaluation to be assigned. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013) ("[38 U.S.C.] § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas"). Thus, the Board does not find that the suicidal ideation espoused by the Veteran in April 2014 has affected his overall functioning so as to support a finding of reduced reliability and productivity or higher rating. The Board also acknowledges the symptoms reported by the Veteran during the August 2015 Board hearing, as discussed above. While the Veteran is competent to report observable symptoms, the medical evidence does not show the level of occupational and social impairment needed to support a higher rating. The Board finds the VA examination reports and treatment records prior to February 25, 2020, are of greater probative weight than the lay assertions. Considering the record before it, the Board finds that, for the period on appeal prior to February 25, 2020, the severity, frequency and duration of the Veteran's PTSD symptomatology more closely approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, rather than occupational and social impairment with reduced reliability and productivity or greater impairment. As such, an initial rating in excess of 30 percent is not warranted prior to February 25, 2020, and the claim is denied. Entitlement to an initial rating in excess of 70 percent for PTSD from February 25, 2020 For the period on appeal from February 25, 2020, the issue before the Board is whether the Veteran's psychiatric symptoms cause total occupational and social impairment. To merit the assignment of the maximum rating (100 percent) under Diagnostic Code 9411, the objective evidence must demonstrate total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. After reviewing the evidence of record, including the February 2020 VA examination report, VA treatment records and the Veteran's statements, the Board finds that the severity, frequency and duration of the Veteran's PTSD symptoms have consistently reflected occupational and social deficiencies with, at worst, deficiencies in most areas, which is consistent with the current 70 percent rating; it does not demonstrate total occupational and social impairment. Thus, a 100 percent initial rating is not warranted from February 25, 2020. With respect to occupational and social functioning, the January 2020 VA examination report shows the Veteran is retired and has positive, although limited, social interactions. While the January 2020 VA examiner noted that the Veteran reported becoming increasingly isolated because a close friend moved away; that he stopped driving and stays home alone while his spouse works; and that he spends his time watching television during the daytime and stays in bed up to 12 hours per day, the examiner also noted that the Veteran's wife accompanied him to the evaluation; the Veteran maintains relationships with his adult children; he typically makes lunch for himself; and he has neighbors who are available if he needs help. The examiner also noted the Veteran is capable of managing his own financial affairs and was not involved in any legal or disciplinary actions. Thus, the Board concludes that the evidence does not support a finding of total occupational and social impairment. The Board has reviewed and considered whether the Veteran's reported symptoms support a maximum 100 percent rating. During the February 2020 VA examination, the examiner noted symptoms of depressed and anxious mood; anxiety over not being able to find the words to express his thoughts; suspiciousness; panic attacks more than once per week; chronic sleep disturbances that occur more than once per month and cause clinically significant distress or impairment in social or other areas of functioning; mild memory loss, such as forgetting names, directions or recent events; short-term and long-term memory impairment; flattened affect; speech intermittently illogical, obscure or irrelevant; impaired judgment; disturbances of mood and motivation; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and suicidal ideation. The examiner also noted the presence of intrusive symptoms, avoidance and negative alterations in cognitions and mood associated with the traumatic event, including hypervigilance; exaggerated startle response; problems with concentration; and medical complications associated with other health conditions, including Parkinson's disease and a back condition, that exacerbated his PTSD symptoms. During the examination, the Veteran's wife reported observing a dissociative state, described as a blank stare lasting up to an hour at a time. However, there is no evidence showing that the Veteran has gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting 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. Rather, the February 2020 VA examiner noted the absence of these specific symptoms. While the examiner observed poor eye contact, a depressed and anxious mood and affect that was dysphoric, he also observed the Veteran arrived on time for the evaluation, was appropriately dressed, adequately groomed, alert although somewhat slow to respond verbally, and was responsive to questions and cooperative. The examiner noted that the Veteran's current functioning was impaired by Parkinson's disease, that his short-term memory appeared to be significantly impaired, and that there were deficits in attention, concentration and focus. See 38 C.F.R. § 4.14 (the use of manifestations not associated with the service-connected disability to evaluate the service-connected disability is prohibited). The examiner also observed that sensorium was partially clear (the Veteran was oriented to person, place and situation but had difficulty with dates), remote memory was grossly intact, and the Veteran's thoughts were generally coherent, logical and goal directed without any evidence of looseness of association or flight of ideas. Additionally, there were no auditory of visual hallucinations or evidence of attention to internal stimuli noted, and no manic episodes, paranoia or delusional thought processes elicited. Further, fund of knowledge was noted to be fair, and insight was good, although judgement was partially impaired due to depressive symptoms. VA treatment records from February 25, 2020 reflect complaints and findings consistent with those noted on the February 2020 VA examination report. The Veteran denied suicidal ideation during April 2020 VA treatment, and the mental status examination showed the Veteran was polite and cooperate, speech was normal, affect was euthymic and thought processes were linear and goal-directed. A June 2020 VA treatment noted a negative screening for suicidal ideation. Considering the record before it, the Board finds that the severity, frequency, and duration of the Veteran's PTSD symptoms more closely approximate the symptoms contemplated by a 70 percent rating. The preponderance of the evidence does not show symptomatology which more nearly approximates total social and occupational impairment. Thus, an initial rating in excess of 70 percent for PTSD from February 25, 2020 is denied. See 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. In reaching these conclusions, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of probative evidence is against the claims, the doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). As a final matter, the Board acknowledges that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, in this case, the Veteran has not asserted, and the record does not reflect, that he is rendered unemployable due to his PTSD disability. As such, the Board finds that a claim of entitlement to TDIU has not been raised and no further action pursuant to Rice is necessary. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, as due to herbicide agent exposure 2. Entitlement to service connection for hypertension, as secondary to diabetes mellitus In January 2020, the Board remanded the claims for service connection for diabetes mellitus and hypertension to undertake additional evidentiary development. While it appears that some development has been completed, a supplemental statement of the case (SSOC) has not been issued on the claims. It appears these issues were prematurely returned to the Board. Thus, a remand for issuance of an SSOC is necessary. 38 C.F.R. § 19.31. The matters are REMANDED for the following action: Readjudicate the Veteran's claim for entitlement to service connection for diabetes mellitus and hypertension to include consideration of evidence received since the July 2016 SSOC. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished an SSOC and given an opportunity to respond before the case is returned to the Board. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.