Citation Nr: 21040394 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 13-11 782A DATE: July 3, 2021 ORDER An initial disability rating for posttraumatic stress disorder (PTSD) in excess of 50 percent prior to April 9, 2012, is denied. FINDING OF FACT From January 2008 through April 2012, the Veteran experienced difficulty in establishing and maintaining effective work and social relationships due to service-connected PTSD. CONCLUSION OF LAW The criteria for a disability rating greater than 50 percent for PTSD from January 2008 through April 2012 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1965 to July 1965, January 1971 to September 1976, and February 1991 to March 1991. He had combat service in Vietnam. This matter has a lengthy procedural history. It originated with an October 2010 Agency of Original Jurisdiction (AOJ) decision which granted service connection for PTSD. The Veteran disagreed with the disability rating assigned and has continuously pursued the appeal since that time. The case has been before the Board of Veterans' Appeals (Board) twice previously and has been remanded by the United States Court of Appeals (Court) twice. Most recently, in January 2021, the Court endorsed a Joint Motion for Partial Remand filed by both parties to the case, vacating a March 2020 Board decision to the extent that the Board denied a disability rating in excess of 50 percent prior to April 9, 2012, and remanded that portion of the appeal to the Board for further analysis. The remainder of the Board's findings and conclusions were not disturbed by the Court. Thus, the issue before the Board at this time is limited to whether the Veteran's PTSD should have been rated higher than 50 percent disabling between January 11, 2008, the date the Veteran filed a claim for entitlement to service connection for PTSD, and April 9, 2012, the effective date for the currently-assigned 70 percent disability rating. As above, the Veteran's attorney has clarified that the Veteran is satisfied with the 70 percent disability rating effective April 9, 2012, and is only seeking a higher rating for the period of time from January 2008 to April 2012. In the Joint Motion for Partial Remand, the parties agreed that the Board had previously failed to adequately analyze the frequency, severity, and duration of the Veteran's symptoms and to discuss whether his symptoms produced deficiencies in most areas. 38 C.F.R. § 4.126(a). Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38U.S.C. §1155; 38C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38C.F.R. §4.7. The Veteran's entire history is reviewed when making disability evaluations. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38C.F.R. §4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating claims for increased ratings, we must evaluate the veteran's condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. The Veteran's PTSD is currently rated under Diagnostic Code 9411. Pursuant to Diagnostic Code 9411, a 50 percent rating is warranted where there is an 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. A 70 percent 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 that 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The "such symptoms as" language of the diagnostic codes listed above means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, 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. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Historically, service connection for PTSD with alcohol dependence was granted in October 2010, implemented as effective in January 2008. The AOJ acknowledged the Veteran's combat service and fear for his life during his Vietnam service. That he had a diagnosis of PTSD which was medically linked to his combat experiences satisfied the other elements for a grant of service connection. Although the AOJ assigned a 30 percent initial disability rating, in a March 2013 decision, the AOJ retroactively increased the rating to 50 percent, effective in January 2008. The Veteran continues to assert that his PTSD caused impairment which was greater than is reflected by the assignment of the 50 percent rating during this time. His attorney argues that during the time period at issue, the Veteran was experiencing "escalating issues with anger, irritability, depression, anxiety, and isolation," which warrant a 70 percent disability rating. VA treatment records in 2008 reflect diagnoses of PTSD and depression. He was taking prescription medication for these symptoms but was not receiving other mental health treatment, such as counseling. At the September 2010 VA examination upon which the grant of service connection was based, the Veteran reported that he lived out in the country because he avoided cities; had a lot of weapons at home and barbed wire fence around his land; his neighbors knew to call before coming near his house; he felt anxious when he woke up at three o'clock in the morning, but not in the realm of a panic attack; he got anxious at the sight of Asian people and the smell of flesh; his sleep was poor; he avoided crowds; cursed at other drivers due to anger issues; felt depressed some days out of the month; was tearful at times; had low interest, poor memory and concentration; and no suicidal thoughts, mania, or psychosis. He was not getting medical care other than medication for PTSD, which after the initial diagnosis by a VA psychiatrist, was being prescribed by his primary care provider. He was not getting treatment for alcoholism, and specifically denied attending Alcoholics Anonymous meetings. The Veteran stated that he had been divorced three times and at that time, he was married to his wife of 17 years. He reported good relations with his seven children. He stated that he got along with his wife as she understood him; however, he explained that he lost his first three marriages due to his temper and excessive drinking and that he physically assaulted his past wives. Upon examination, the Veteran was neatly groomed; appropriately dressed; his speech was unremarkable; his attitude was cooperative, friendly, relaxed, and attentive; his affect was normal; his mood was good; his attention was intact; he was oriented to person, time, and place; his thought process and content were unremarkable; he had no delusions; and in regard to judgment, he understood the outcome of his behavior. He reported sleep impairment, which made it difficult for him to fall asleep and stay asleep. He reported no hallucinations; no panic attacks; no homicidal or suicidal thoughts; and good impulse control; and he showed no inappropriate behavior. The examiner noted that his remote, recent, and immediate memory were normal. The Veteran confirmed that he was not working. VA treatment records show symptoms consistent with the September 2010 VA examination. The VA treatment records show distressing recollections of war, waking scared, sweating, flashbacks, isolation, difficulty sleeping, detachment from family, hypervigilance, anxiousness, depression, feelings of worthlessness, helplessness, and that he cried at times during interviews for the purposes of VA treatment. He reported that he retired from working as a high school teacher due to anger issues. The Veteran retired from his position as a high school English teacher in January 2008. He relates that he retired primarily on account of difficulties with anger and an unfortunate incident where he got into a physical altercation with a student. According to a January 2020 vocational assessment arranged by the Veteran's attorney, his orthopedic disabilities and hearing loss also played a role in his decision to retire, as the standing, walking, and listening requirements inherent to the job were increasingly difficult for him. Nevertheless, it is clear that his PTSD symptoms, including irritability, anger and impaired sleep affected his ability to fulfill his role as a high school teacher. The Veteran attempted to return to work in 2010 as a teacher for the incarcerated youth in a juvenile facility. He resigned from this job after seven months, as he felt the aggravations of the job were worsening his PTSD symptoms. Other than this seven-month role, he was not employed during the time period at issue here. In evaluating the Veteran's impairment from PTSD during the period from January 2008 to April 2012, the Board concludes that his symptoms reflected in the evidence from that time period are more nearly analogous to the criteria set forth for a 50 percent disability rating. Socially, although he reported few relationships outside his family, he maintained positive family relationships. The criteria for a 50 percent rating include "difficulty in establishing and maintaining effective work and social relationships," which is certainly reflected in the medical evidence. However, the contemporaneous evidence does not show the "inability to establish and maintain effective relationships," as would be required for a 70 percent disability rating. The Veteran's attorney points to the Veteran's detachment and isolation from his family and his having few friends as evidence of social impairment. That he was socially impaired at the time is clear and is indeed recognized by the award of a 50 percent disability rating reflecting such difficulty with social relationships. However, the total inability to establish and maintain relationships is simply not shown, particularly given the Veteran's capacity to maintain familial relationships and certain friendships. With regard to his work status during the time period at issue, the Veteran was retired from teaching due to the combined impact of multiple conditions. While it is apparent that the Veteran's psychiatric symptoms caused certain occupational impairment, it cannot be concluded that his deficiencies in this realm were due solely to his PTSD. His efforts to secure a job teaching juvenile offenders is unpersuasive on this point, as he chose to pursue a position which would be challenging for even those without a psychiatric disability. This position is also notably more challenging than his former role as a high school teacher, such that his inability to succeed in this respect is neither unexpected nor direct evidence of worsening psychiatric impairment. Thus, we decline to view his decision to leave this job as evidence warranting a higher rating in this case. Suicidal thoughts are a particularly important symptom for the award of a 70 percent disability rating. Significantly, this symptom does not appear in any of the lower level criteria. Furthermore, the United States Court of Appeals for Veterans Claims has held that mere thoughts of suicide are sufficient to establish suicidal ideation. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). In this case, the Veteran denied having suicidal ideation upon each occasion when he was asked between January 2008 and April 2012. In sum, the Veteran's overall mental health picture between January 2008 and April 2012 is more nearly analogous to the rating criteria for the 50 percent rating. The overall severity of his symptoms was more closely aligned with the criteria for the 50 percent rating. One factor in this conclusion is that the Veteran was not seeking therapy or particular treatment for PTSD other than the prescription medication. In fact, the medical evidence pertaining to PTSD between 2008 and 2012 is fairly sparse overall. The Veteran's social adaptation more nearly approximates that described in the criteria for the 50 percent rating. His industrial adaptation during this time is more difficult to evaluate given his retirement status, but overall, the evidence tends to show difficulty in establishing and maintaining effective work and social relationships rather than the inability to establish and maintain effective relationships. Lastly, that he denied suicidal ideation throughout the period on appeal is a highly significant factor supporting a 50 percent rating, as explained above. Moreover, the Veteran did not demonstrate many of those additional symptoms enunciated in the criteria for a 70 percent rating during the period on appeal, including obsessional rituals, inappropriate speech, spatial disorientation, neglect of appearance or hygiene, or near-continuous panic or depression which affected the ability to function independently. Rather, he remained capable of communicating effectively and appropriately with his treatment providers and remained capable of performing the tasks of daily living without assistance, despite his symptoms. Although the Board acknowledges that the criteria for a 70 percent rating do not constitute an exhaustive list, it is simply not shown that the Veteran demonstrates such symptomatology or overall disability picture as to warrant a higher rating in this case. Rather, the preponderance of the evidence is against the award of a disability rating in excess of 50 percent from January 2008 through April 2012. The 50 percent rating is reflective of the Veteran's reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships due to his PTSD symptoms. The evidence from this time period does not show the inability to establish and maintain effective relationships, however, and the appeal is hereby denied. [CONTINUED ON NEXT PAGE] Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Heather J. Harter, 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.