Citation Nr: 21031014 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-03 887A DATE: May 20, 2021 ORDER Entitlement to an evaluation in excess of 30 percent for PTSD prior to December 2, 2014 is denied. Entitlement to an evaluation in excess of 50 percent for PTSD after December 2, 2014 is denied. FINDINGS OF FACT 1. Prior to December 2, 2014, the Veteran's service-connected PTSD was manifested by occupational and social impairment with decrease in efficiency and intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal. 2. Since December 2, 2014, the Veteran's service-connected PTSD has been manifested by occupational and social impairment with reduced reliability and productivity as a result of psychiatric symptomatology, without more severe manifestations that more nearly approximated a 70 percent rating. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 30 percent for PTSD prior to December 2, 2014 have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to an evaluation in excess of 50 percent for PTSD after December 2, 2014 have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Navy from June 1974 to August 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a February 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). Following an October 2018 remand, the Board denied the Veteran's appeal for an increased evaluation of his post-traumatic stress disorder (PTSD) in December 2019. The Veteran timely appealed to the United States Court of Appeals for Veteran's Claim (Court), which granted a Joint Motion for Remand (JMR) in November 2020, citing insufficient reasons for the denial. The case has since been returned to the Board for further appellate review. Increased Ratings 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 noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). 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 rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id at 118. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 does not represent an exhaustive list of symptoms 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). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. 1. Entitlement to an evaluation in excess of 30 percent for PTSD prior to December 2, 2014 The Veteran is currently service-connected for PTSD at 30 percent disabling from April 15, 2013 to December 1, 2014. He contends the severity of his symptoms during this period warrant an evaluation of 50 percent or higher. 38 C.F.R. § 4.130, Diagnostic Code 9411. The November 2020 JMR indicates several reasons for finding the Board's December 2019 denial inadequate. First, the parties found decision did not address the Veteran's panic attacks more than once a week reported at his March 2014 VA examination, which is a symptom contemplated by a 50 percent rating. The Board acknowledges the Veteran's statement and the examination report; however, the remainder of the medical record lacks any indication of frequent panic attacks, panic symptoms, or a level of anxiety or distress equivalent to that reported at his VA examination. VA mental health records from March, May, and July 2013 indicate the Veteran specifically denied anxiety, panic symptoms, and severe emotional distress. See CAPRI, 7/12/2019, pgs. 364, 388, 392, 409, 419, 429/440. Mental health treatment received in May and December 2013 are also silent for panic symptoms or other psychologically related symptoms. Additionally, the Veteran began receiving VA mental health treatment in April 2011. Mental health assessments performed in May 2011, November 2011, and March 2012 show no symptoms of panic, anxiety, emotional distress, obsessive behavior, feelings of hopelessness, suicidal or homicidal ideations, delusions, or audio or visual hallucinations. The Board finds the Veteran's mental health record does not support the finding in the exam of regular occurrences of panic symptoms related to his PTSD occurred more than once a week prior to December 2, 2014. In particular, the Board finds the Veteran's statements regarding his symptoms, and specifically those relative to panic attacks, made to treating medical providers more credible than those said in the context of a single compensation examination. Second, the JMR notes the Board failed to discuss the Veteran's symptom of impaired abstract thinking noted at his March 2014 VA examination. Thorough review of periodic mental health treatment records does not support a finding that the Veteran frequently exhibited such symptoms. Assessments in March, April, May, July, September, November, and December 2013 nearly a full year leading up to the examination show he presented with productive thought processes, fair to good judgment and insight, good impulse control, and preserved memory. Furthermore, his treatment records demonstrate that in March, April, June, and November 2014, he presented with linear thought, and productive, regular speech. Throughout the period, the Veteran's thought process elicited no delusions, paranoia, grandiosity, obsessions, or compulsions. His insight, judgment, and impulse control were adequate, and he was noted to have no signs of cognitive impairment. Additionally, mental health records from 2011 and 2012 show similar patterns of signs and symptoms. He was found to have no cognitive impairment as his speech was organized, linear, and goal directed. He was found to be fully oriented and alert with a calm, relaxed demeanor, and good eye contact at each assessment. Notwithstanding the single statement in the March 2014 VA examination, the preponderance of the medical evidence does not show the Veteran experienced this symptom with any frequency prior to December 2, 2014. Third, the JMR emphasizes the Veteran's symptoms of persistent and exaggerated negative beliefs, markedly diminished interest in activities, and a persistent inability to experience positive emotions. The Board notes that the medical record does not support this finding as demonstrated by regular VA mental health treatment from April 2011 to December 2014. A week following the Veteran's March 2014 VA examination, he indicated positive responses in areas pertinent to his disability. For example, the Veteran self-reported an 8/10 on the mental and emotional scale (1 for anxious, angry, hopeless, alone; to 10 for happy, connected, content). Similarly, he provided responses ranging from 8/10 to 10/10 on areas such as caring relationships and meaningful support, sense of purpose and sources of comfort, and feeling physically and emotionally safe. See CAPRI, 7/12/2019, pg. 337/440. He reported his mood "has been ok overall" and denied any significant mood or psychotic symptoms. He was noted throughout 2013 and 2014 as having good clinical control of his condition. The VA examiner explained that the Veteran's symptoms of his depressive disorder could not be separated from his depressive symptoms relate to PTSD. A 30 percent rating for psychiatric disability contemplates depressed mood and related symptoms. VA treatment records, a March 2014 VA examination, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms including nightmares, suspiciousness, anxiety, depressed mood, panic attacks, chronic sleep impairment. He reported symptoms associated with a 50 percent rating including, disturbances of motivation and mood, panic attacks more than once a week, and impaired abstract thinking. Although the March 2014 examiner noted the Veteran's symptoms of impaired abstract thinking, panic attacks more than once a week, and exaggerated negative beliefs, the examiner declined to conclude the Veteran's symptoms resulted in occupational and social impairment with reduced reliability and productivity, as a rating of 50 percent anticipates. The Veteran is shown to have successfully maintained his occupation as a mail carrier for 35 years. The Veteran indicated his PTSD caused stress intolerance at work, but there is no evidence his symptoms had an impact on his work performance. The Veteran also stated he was occasionally late to work but that the behavior was due to his dislike of the job. There is also no indication the Veteran's symptoms resulted in difficulty maintaining effective relationships. The Veteran indicated to the March 2014 examiner that he maintains a great relationship with his wife of 24 years. He also maintains close friends with at least two friends and maintains friendly relationships with co-workers. As a whole, mental health records demonstrate the Veteran's symptoms were not of severity anticipated by a higher evaluation of 50 percent. The Veteran was not reported to have difficulty understanding complex commands, impairment of memory, impaired judgment, flattened affect, abnormal speech, suicidal or homicidal ideation, disorientation, neglect of hygiene, obsessive rituals, or impaired impulse control at any time prior to December 2, 2014. He was consistently noted as having good eye contact, normal conversational speech, calm, relaxed, and cooperative behavior throughout the period. See CAPRI, pgs. 304, 313, 317, 320, 321, 331, 336, 344/440. He reported nightmares that "come and go" a couple days a week but was vague in describing the content of the dreams. See pg. 313/440. Recurrent distressing dreams are similar to chronic sleep impairment, which is contemplated by the assigned 30 percent rating. Further, the Veteran's symptoms of irritability and anger are associated with symptoms of depressed mood, anxiety, and suspiciousness, as contemplated by a 30 percent rating. The Veteran self-reported symptoms associated with a 50 percent rating; however the examiner concluded the Veteran's symptoms did not amount to reduced reliability and productivity and the medical evidence does not support an increase in his symptoms for this period. The Veteran was generally functioning satisfactorily, with routine behavior, self-care, and good hygiene and grooming. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 30 percent rating based on their frequency, severity, and duration. The Board concludes that the Veteran's symptoms prior to December 2, 2014 more closely approximated and resulted in a level of impairment associated with a 30 percent rating for mental disorders. Although the Veteran is competent to report observable symptoms and experiences, the medical record does not support a finding the Veteran's cumulative symptoms result in a higher evaluation. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Statements made in the course of regular mental health treatment are more credible than statements made in the connection with a claim for benefits. The Board does not find that the record is silent on the issue, rather that it is contrary to an increase in severity. Regular, oftentimes monthly, mental health assessments for his condition indicate a stable, and at times improving, status of the disability. As such, the observations of the several VA clinicians, VA examinations, and regular mental health treatment for the period of April 2013 to the December 2014 are given high probative value and afforded significant weight. In short, 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 a 50 percent rating. As the preponderance is against an increase, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 2. Entitlement to an evaluation in excess of 50 percent for PTSD after December 2, 2014 The Veteran was awarded a 50 percent rating for his PTSD, effective December 2, 2014. He contends his symptoms warrant an evaluation in excess of 50 percent thereafter. The Board concludes that the Veteran's symptoms did not cause the level of impairment anticipated by a disability rating of 70 percent or higher after December 2, 2014. Rather, the Veteran's symptoms resulted in a level of impairment that most closely approximates impairment associated with a 50 percent rating as he is currently rated. Regular mental health treatment shows the Veteran's PTSD was manifested by symptoms associated with a 50 percent rating including chronic sleep impairment, flattened affect, depressed mood, anxiety with panic attacks more than once a week, disturbances in motivation and mood, impairment of short- and long-term memory, difficulty in establishing and maintaining effective work and social relationships; and symptoms associated with a 70 percent rating including near-continuous panic, difficulty in adapting to stressful circumstances, and impaired impulse control, such as unprovoked irritability with periods of violence. The November 2020 JMR found the Board provided an inadequate discussion of a medical evidence in favor of an evaluation in excess of 50 percent. Specifically, at his March 2015 VA examination, the Veteran reported an inability to establish and maintain effective relationships, difficulty in adapting to stressful situations, and impaired impulse control with irritability and periods of violence. Treatment records prior to and following his VA examination are contrary to this. The March 2015 examiner indicated the Veteran's symptoms of PTSD "have persisted with increased frequency and intensity" since his March 2014 examination. However, she opined the Veteran's symptoms resulted in occupational and social impairment with reduce reliability and productivity. Upon examination, the Veteran reported difficulty in adapting to recent procedure changes and productivity demands at work due to his mood disturbance, stress intolerance, and reduced concentration. The evidence does not show the Veteran's symptoms had any impact on his work performance or occupation and he is shown to have retired from his profession after 40 years in public service. There is no indication in the record that he suffered any significant occupational impairment due to his PTSD symptoms. The Veteran also reported difficulty in maintaining social relationships and skills due to a low tolerance of people, impaired impulse control, and difficulty adapting to stressful circumstances. From 2016 to 2019, the Veteran stated he had good relationships with his two older siblings, supportive relationships with coworkers, and reported spending time with friends on the weekends. Throughout this period, the Veteran reports a supportive relationship with his wife of 28 years. There is no evidence of a detrimental impact on his ability to maintain effective relationships. Treatment during this period also shows the Veteran has good impulse control and at no point is there an indication he displays unprovoked irritability with periods of violence or physical aggression. In February 2018, he reported an improvement in irritability, anger management, disturbed memories, startle response, attitude, anxiety, and reduction in depression symptoms. Further, in October 2015, March 2016, January 2018, and July 2018, the Veteran specifically denied symptoms of panic and anxiety. CAPRI, 7/12/2019, pgs. 174, 258, 275/440. The March 2015 examiner also explained the Veteran's depressive symptoms were not provided a separate diagnosis as they are best conceptualized under Criterion D and E within the context of his primary diagnosis of PTSD. As such, the Veteran's mood disturbances are associated with his primary diagnosis and have not been shown to manifest to such a degree as to interfere with his ability to function independently, appropriately, and effectively. Although the Veteran self-reported symptoms associated with a 70 percent rating, the evidence does not support a frequency of these symptoms or a finding that they resulted in the contemplated level of impairment. Mental status examinations in VA treatment records indicate that the Veteran was not noted as having spatial disorientation or impaired impulse control. He was consistently noted as oriented in all three spheres with no evidence of tangential thought process, loose associations, psychotic symptoms, paranoia, or auditory or visual hallucinations. Regular mental health treatment from 2011 to 2020 shows the Veteran has good judgment, insight, has not been noted as having difficulty with impulse control. The most recent mental health assessment of record, taken in October 2020, indicates the Veteran displayed linear, organized, and goal-oriented thought processes and productive speech with regular rate, rhythm, and volume. His mood was euthymic and his affect was congruent and appropriate to interview situation. He was deemed to have good judgment and insight with no hallucinations, cognitive impairment, or suicidal ideations. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. Accordingly, the Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity but did not result in deficiencies in most areas of work, school, family relations, judgment, thinking, or mood. The Board has considered the Veteran's contentions and lay statements and finds him credible to report observable symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the cumulative medical record, including regular mental and behavioral health assessments, are given significant probative value as they represent a disability picture spanning the entire period of appeal. Thus, the medical evidence outweighs the Veteran's lay statements. Having reviewed the complete record, the Board finds 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 a 70 percent rating. As the preponderance is against an increase, the benefit of the doubt doctrine is not for application and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.N. Chapman, 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.