Citation Nr: 21031804 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 13-32 820 DATE: May 24, 2021 ORDER From September 17, 2014, entitlement to an evaluation of 70 percent, but not greater, for service-connected posttraumatic stress disorder (PTSD) and neurocognitive disorder is granted, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. From September 17, 2014, the most probative evidence reflects that the Veteran's service-connected posttraumatic stress disorder (PTSD) and neurocognitive disorder was manifested by severe symptomatology, resulting in occupational and social impairment with deficiencies in most areas, such as work, family relationships, thinking, and mood. 2. The Veteran's service-connected PTSD and neurocognitive disorder, did not result in total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to an evaluation of 70 percent but not greater, for service-connected posttraumatic stress disorder (PTSD) and neurocognitive disorder, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1967 to August 1969. He served in the Republic of Vietnam from February 1968 to February 1969. This matter comes before the Board of Veteran's appeals (Board) from an April 2017 rating decisions of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana, the agency of original jurisdiction (AOJ). This matter was previously before the Board in September 2019, at which time it was remanded for further development. 1. Entitlement to an evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) and neurocognitive disorder Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. The Veteran's service-connected PTSD is rated under DC 9411. The General Rating Formula for Mental Disorders found at 38 C.F.R. § 4.130 provides the following criteria for entitlement to a 50 percent rating: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; for 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 to be able to establish and maintain effective work and social relationships. The General Rating Formula for Mental Disorders found at 38 C.F.R. § 4.130 provides the following criteria for entitlement to a 70 percent rating: Occupational and social impairment, with deficiencies in most areas, such as with his or her work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with his or her 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 worklike setting); and inability to establish and maintain effective relationships. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following criteria for entitlement to a 100 percent rating: 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. An increased rating analysis must address the impact of the service-connected disability on the "ordinary conditions of daily life, including employment." Full and accurate descriptions of manifestations and limitations are required. The focus is on the severity of the symptoms and the level of impairment to occupational and social function rather than how many of the listed symptoms the veteran exhibits. 38 C.F.R. §§ 3.321, 4.2, 4.2, 4.10; Mauerhan v. Principi, 16 Vet. App. 436 (2002). Analysis A June 2013 rating decision granted service connection for PTSD, cognitive disorder, not otherwise specified. An evaluation of 50 percent was assigned, effective November 23, 2009, the date of receipt of claim. The 50 percent evaluation was based on an October 2012 VA examination report. Generally, the effective date of an award of an increased rating is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If the earlier date that the claimed increase in disability occurred is factually ascertainable based on all evidence of record within one year prior to the receipt of claim, the effective date is the date such increase occurred. 38 C.F.R. § 3.400(o)(2); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In this matter, the Veteran filed a claim for increased evaluation for PTSD and cognitive disorder, unspecified, that was received on February 11, 2017. However, in an earlier statement submitted in September 2014, the Veteran stated that his symptoms, including flashbacks, nightmares, and reliving past combat experiences, had intensified over the two-year period since his prior examination in October 2012. Further, in a June 2015 decision, the Board found that the issue of entitlement to an increased rating for PTSD was raised by the record in September 2014 but had not been adjudicated by the AOJ. At that time, the Board found it did not have jurisdiction over the PTSD claim and referred it to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Because the Board previously found that entitlement to an increased rating for PTSD was raised by the record in September 2014, and referred that issue to the AOJ in June 2015, the Board finds that September 17, 2014, is the appropriate effective date for the increased rating awarded here, as that is the date that the Veteran initially asserted that an increase in symptoms had occurred. The Board will now address the evidence related to the Veteran's claim for a rating in excess of 50 percent for his PTSD and neurocognitive disorder. An April 2015 Mental Health Note indicted that the Veteran complained of depressive symptoms, feeling depressed or down nearly every day, not being interested in things or unable to enjoy things like use to, sleeping problems (difficulties falling asleep, sleeping too much), feeling tired all the time, feeling worthless, changes in how fast he moves and problems thinking, concentrating, or making decisions. The Veteran reported that the type of thoughts that pass through his mind when he feels depressed or sad is feeling worthless. He reported that he mostly isolates when he feels depressed. He also indicated that he does not get along with people when he feels depressed and has cut people out of his life. A November 2015 PTSD Clinic note indicates that the Veteran reported increased symptoms during periods of heavy rains which remind him of monsoons in Vietnam and the heavy engagement experienced there. He also reported mood swings and sleep problems. A February 2016 mental health social worker note indicated that the Veteran reported that he has nightmares about being chased by people who are trying to kill him. The Veteran recounted a dream he had last month about going to Vietnam and being chased by Vietnamese people with sticks and objects to throw at him. The Veteran reported that he could not sleep for days after this dream. In September 2016, the Veteran submitted a Statement in Support of Claim for Service Connection for PTSD, indicating that his initial PTSD Disability Benefits Questionnaire did not include two stressors of "perimeter protection firing" at base camp on the outskirts of Qui Nhon and "ambushes" that occurred constantly during the monsoon season, when they sustained heavy casualties. The Veteran related having symptoms of anxiety, fear, flashbacks and horror dreams associated with Vietnam combat duties. The Veteran submitted a statement in November 2016. He stated that he began a VA PTSD intervention program in January 2015 to cope with anxiety, avoidance, dreams, depression, and dysfunctional thoughts related to Vietnam combat duties. He also stated that he takes prescribed medication to treat PTSD with trauma-related nightmares. He asserted that two stressors were omitted from his initial PTSD claim, specifically "perimeter protection firing" and "monsoon season ambushes." He described symptoms of reoccurring flashbacks, nightmares, sleepless nights, and dreams. The Veteran was afforded a VA examination in January 2017. The Veteran was diagnosed with PTSD and neurocognitive disorder, previously diagnosed as cognitive disorder, NOS. The examiner stated that the Veteran's PTSD is responsible for his nightmares, irritability, mood swings, and flashbacks. The mild neurocognitive disorder is responsible for short term memory problems. The examiner stated that the Veteran's memory problems exacerbate his irritability and PTSD symptoms. The examiner stated that the Veteran's PTSD is responsible for 90% of his work-related limitations; the mild neurocognitive disorder is responsible for the other 10%. The Veteran reported that he stopped working in 2011. The Veteran reported nightmares, sleep problems, flashbacks, anxiety, and living in the past. He stated that he feels that his sleep problems make everything worse. He stated that as he has aged, his PTSD symptoms have worsened. When he first got home from Vietnam, he didn't discuss anything because of the public reaction to the war. He goes to two counselors at the VA for individual therapy. He takes Prazosin HCL for nightmares. The Veteran described sadness related to a nephew's death in 2011 and that he started drinking more since then. He stated that he uses alcohol as a sedative once or twice a week when he has nightmares to help him get back to sleep. He related two stressors that contributed to his PTSD: While he was in Vietnam, his job was to saturate the area with machine gun fire. When he was called to do this, he was alone and at times, he was afraid. Another event was going through Mangyan Pass during the monsoon season where there were attacks and ambushes, with many deaths. He stated that his nightmares and flashbacks involve these events. The examiner noted symptoms of depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; a difficulty in being able to establish and maintain effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work like setting. The Veteran denied suicidal and homicidal ideation. The examiner found that the Veteran's PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner found there is a progression in the Veteran's symptoms however no change to the service-connected diagnosis. March 2017 VA PTSD Program notes indicated that the Veteran entered treatment in April 2015. He reported intrusive, distressing thoughts, images or dreams that recall the traumatic event. Homicidal ideation without plan was noted. Chronic psychiatric symptoms without remission were noted. March 2017 psychiatric outpatient notes indicated depression and chronic PTSD, anxiety with features of PTSD-remission, nightmares improved. An April 2017 rating decision continued the evaluation of 50 percent disabling based on: Forgetting names Depressed mood Disturbances of motivation and mood Mild memory loss Forgetting recent events Chronic sleep impairment Difficulty in adapting to stressful circumstances Difficulty in adapting to work Difficulty in adapting to a worklike setting Anxiety Difficulty in establishing and maintaining effective work and social relationships Occupational and social impairment with reduced reliability and productivity Forgetting directions. The RO found that the overall evidentiary record shows that the severity of the Veteran's disability most closely approximates the criteria for a 50 percent disability evaluation. VA psychiatry outpatient notes in May 2017 indicate that the Veteran reported having good and bad days, ongoing issues with nightmares, and was working with a VA social worker. Symptoms noted were insomnia, nightmares, and chronic pain. In August 2017, the Veteran submitted research findings that PTSD symptoms can negatively impact family relationships and lead to divorce; it stated that divorce rates among Vietnam Veterans are higher than the general population. He also submitted a statement and documentation that when he was employed at a casino, he was awarded Employee of the Year in 2009. Thereafter, beginning in 2010, his PTSD symptoms caused him to be absent from work and he was unable to focus or concentrate, and was provided Corrective Action Notice for his excessive absenteeism and unsatisfactory work performance; soon thereafter, he left his job. He also stated that he sought help from the VA in November 2009 but did not receive any behavior therapy or counseling until January 2015. He stated that constantly reliving his Vietnam combat experiences was "almost unbearable;" and as a result of his PTSD symptoms, his social life became nonexistent. March 2018 PTSD clinic notes indicate the Veteran reported poor sleep, irritability low energy, and decreased concentration, usually on the nights he is unable to sleep. He denied any other mood symptoms at this time, stating "I'm fine as long as I can sleep." He denied suicidal or homicidal ideation. He stated his main problem is with nightmares. Anxiety, insomnia, nightmares, and irritability were noted as symptoms. In a September 2018 decision, the Board noted that the Veteran had filed a notice of disagreement in August 2017 relating to the April 2017 rating decision denying an increased disability rating for the Veteran's service-connected PTSD. However, the Board noted that the issue was then being addressed by the AOJ and that the Board would not further address it unless a substantive appeal was filed after the AOJ issues a Statement of the Case. A November 2018 mental health social worker indicated the Veteran reported having problems sleeping, maybe because of rainy weather, with increased nightmares dreams, and flashbacks. The Veteran was scheduled for a VA examination to determine the current level of severity of his service-connected PTSD; cognitive disorder, not otherwise specified, on February 14, 2019. However, he failed to attend the examination. In a March 2019 Statement of the Case, a Decision Review Officer (DRO) noted that the Veteran had been scheduled for an examination to discuss additional stressful events which were not recorded in prior examination reports and the associated symptoms. However, VA received notice from the contract agency that the Veteran did not report for the examination scheduled on February 14, 2019. The DRO noted that evidence expected from this examination which might have been material to the outcome of this claim could not be considered. The DRO continued the 50 percent evaluation for posttraumatic stress disorder; neurocognitive disorder, based on VA treatment reports and VA contract examination findings showing: Depressed mood Disturbances of motivation and mood Mild memory loss, such as forgetting names, directions or recent events Chronic sleep impairment Difficulty in adapting to stressful circumstances, including work or a worklike setting Anxiety Difficulty in establishing and maintaining effective work and social relationships Occupational and social impairment with reduced reliability and productivity. Upon receipt of the March 2019 Statement of the Case that noted the missed examination and continued the 50 percent rating for PTSD, the Veteran filed a Notice of Disagreement and a timely VA Form 9 appeal in April 2019. He included a statement providing the reason he did not appear for the February 2019 examination. He stated that he did not remember the scheduled appointment and it was not on his calendar. He explained that the appointment was scheduled in a time frame when he was experiencing frequent and intensive flashbacks, dreams and nightmares. He requested that the examination be rescheduled. In June 2019 the Veteran submitted a statement that for the past weeks, he experienced continued nightmares, flashbacks associated with combat duty events; being deprived of sleep caused anxiety, unable to focus or fully concentrate. He stated that written communication is very difficult. He reported that he was having trouble with organizing sequence of events. In a September 2019 decision, the Board remanded the issue of entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and cognitive disorder. The Board noted that the Veteran did not appear for the VA examination in February 2019. However, in an April 2019 letter the Veteran stated that he was unable to appear for the examination due to nightmares and flashbacks, and he requested a new examination be scheduled. The Board found that the Veteran has shown good cause for his failure to appear for the February 2019 examination. 38 C.F.R. § 3.655. The Board remanded to allow the RO to schedule the Veteran for a new examination. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In February 2020, the Veteran submitted a statement that anxiety and stress overwhelmed him resulting in depression. The Veteran was afforded a PTSD VA examination in March 2020. His diagnoses included PTSD and unspecified neurocognitive disorder. The examiner noted intrusive thoughts, nightmares, reactivity to triggers, avoidance of reminders, hypervigilance, depressed mood, anxiety, irritability, detachment from others, negative beliefs, sleep problems, and exaggerated startle response are attributable to PTSD. The examiner stated that memory and concentration deficits are symptoms of both disorders, so it is not possible to differentiate. He stated that the disorders are likely separate and independent, but are also likely to exacerbate one another. The examiner stated that these disorders cause occupational and social impairment with reduced reliability and productivity. The examiner found that the majority of impairment is due to PTSD, though cognitive symptoms appear to be worsening over time. The Veteran reported problems with irritability that impacts social functioning. He reported that he has no friends and is largely isolative. The Veteran had not worked since 2011. The Veteran receives outpatient mental health services through the VA. He is currently prescribed medication for his disability. He reported that he avoids interacting with people because, "They always say or do something that sets me off." He stated that in church he sits in a pew by himself. The Veteran reported that he occasionally drinks alcohol to help him sleep and when nightmares are worse. The examiner noted that the Veteran displayed deficits with regard to both immediate recall and delayed recall. The Veteran denied suicidal ideation. Symptoms were noted as depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances, including work or a work like setting. The examiner found that the Veteran's PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner noted that the Veteran's irritability is likely to cause problems with interactions with the public, coworkers, and supervisors. The examiner also noted that the Veteran could likely understand, recall, and carry out simple, repetitive instructions and tasks, but would have difficulty with more complex tasks. The Board notes that the symptoms listed under for each rating in the diagnostic criteria are not exhaustive, but rather examples, and the focus should be on occupational and social impairment, rather than number of symptoms. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms; the length of remissions; and the Veteran's capacity for adjustment during periods of remissions shall be considered. An evaluation must be based on all the evidence of record relating to occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the time of examination. 38 C.F.R. §§ 4.2, 4.10, 4.126 (a); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Although checking the box indicating that the Veteran's disabilities cause occupational and social impairment with reduced reliability and productivity, the examiner later indicates that the Veteran's PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. These symptoms include depressed mood, anxiety, irritability, detachment from others, negative beliefs, and sleep problems. The examiner also indicates the significant impact of the Veteran's disability on his interactions with other people and his ability to perform complex tasks. The Board finds the Veteran's noted clinically significant impairment equates to occupational and social impairment, with deficiencies in most areas, such as with work, school, family relations, judgment, thinking, or mood. The Board finds that the record evidence, including the March 2020 examiner's findings, the medical evidence, and the Veteran's lay statements, describe symptoms of PTSD and neurocognitive disorder, and effects thereof on the Veteran's social and occupational functioning, that most closely approximate a 70 percent rating. Although the examiner stated that he could not differentiate between symptoms caused by PTSD or neurocognitive disorder, the June 2013 rating decision granted entitlement to service connection for both PTSD and cognitive disorder, not otherwise specified. This was based on the October 2012 VA examiner's opinion that the Veteran's cognitive disorder is secondary to the Veteran's PTSD and cannot be separated from the PTSD. A single evaluation was assigned, based on the combined effects of both disabilities. The Board notes that the close interrelationship between the Veteran's PTSD and neurocognitive disorder further supports a finding that the Veteran's disability has caused and continues to cause occupational and social impairment, with deficiencies in most areas, such as with work, school, family relations, judgment, thinking, or mood. The Board acknowledges each of the stressors experienced by the Veteran, including those in his original PTSD evaluation and the stressors related by the Veteran in subsequent statements, including his detailed descriptions of "perimeter protection firing and "convoy ambushes." These stressors have been considered and the rating for the Veteran's PTSD and neurocognitive disorder, is based on the impact of the symptoms caused by these stressors on social and occupational functioning, including the effect on the Veteran's marriage, job, and social life. Based on all of the evidence of record, the Board finds that from September 17, 2014, the severity, frequency, and duration of the Veteran's symptoms most closely approximate the criteria for a 70 percent rating for PTSD and neurocognitive disorder. The Board finds that the Veteran's symptoms are not of such severity, frequency, and duration to approximate the total occupational and social impairment necessary to support a 100 percent rating. Although the record reflects that the Veteran is largely isolative and denies any friends, the record also demonstrates that he does at least make an effort to socialize, such as going to church, albeit sitting at a pew by himself. This is also consistent with statements noting that he avoids interacting with people over concerns of getting into arguments. This also demonstrates that he does periodically make efforts to interact with others. Moreover, symptoms consistent with a total rating are gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time and place, and memory loss for names of close relatives, own occupation, or own name, and few, if any, of these symptoms are demonstrated. In addition, apparently in recognition of this, in his recent brief of May 2021, the Veteran's representative states that a "70% rating should be considered for the PTSD." As a result of the above, the Board finds that total social and occupational impairment is not shown. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.