Citation Nr: 21040546 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 19-29 519 DATE: July 5, 2021 ORDER Entitlement to an evaluation in excess of 70 percent for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD) and other specified trauma and stressor related disorder, is denied. FINDING OF FACT During the period on appeal, the Veteran's acquired psychiatric disorder, to include PTSD and other specified trauma and stressor related disorder, has been manifested by no worse than occupational and social impairment with deficiencies in most areas; the Veteran's acquired psychiatric disorder has not resulted in total occupational and social impairment. CONCLUSION OF LAW The criteria for an evaluation in excess of 70 percent for an acquired psychiatric disorder, to include PTSD and other specified trauma and stressor related disorder, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1964 to October 1968. The Veteran contends that he is entitled increased rating for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD) and other specified trauma and stressor related disorder. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). As a preliminary matter, in a statement from May 4, 2021, the Veteran's representative asserted that the date of the current claim at issue is March 12, 1997. The Veteran had submitted a claim for an increased rating for PTSD on March 12, 1997; and the Veteran underwent a VA examination for his PTSD on February 13, 2001. In an August 2001 rating decision, the RO granted the Veteran an increased rating of 50 percent for PTSD, effective February 13, 2001. The Veteran submitted a notice of disagreement (NOD) on March 5, 2001 concerning the issues of increased rating and earlier effective date for PTSD. In a May 2011 rating decision, the RO granted an increased rating of 70 percent for PTSD, effective February 13, 2001. The RO issued a statement of the case (SOC) on May 16, 2011. Based on the May 2011 SOC, the Board took jurisdiction of the issues of earlier effective date and increased rating for PTSD. The issues were discussed at a January 2012 Board hearing. In a November 12, 2013 Board decision, the Board dismissed the issue of increased rating for PTSD and remanded the issue of earlier effective date for the award of service connection for PTSD. The issue of earlier effective date for the award of service connection for PTSD was eventually denied in a November 2015 Board decision. Under 38 C.F.R. § 3.105, decisions are final when the underlying claim is finally adjudicated. Final decisions will be accepted by VA as correct with respect to the evidentiary record and the law that existed at the time of the decision, in the absence of clear and unmistakable error. At any time after a decision is final, the claimant may request review of the decision to determine if there was a clear and unmistakable error in the decision. Where evidence establishes such error, the prior decision will be reversed or amended. When the Board issued the November 2013 decision dismissing the claim of increased ratings for PTSD, that decision was final. See 38 C.F.R. § 3.160(d). The Veteran did not allege clear and unmistakable error, and he did not submit a motion to vacate the November 2013 Board decision. See 38 C.F.R. § 3.105. Likewise, the November 2015 Board decision was also final. 38 C.F.R. § 3.160(d). The Veteran did not allege clear and unmistakable error, and he did not submit a motion to vacate the November 2015 Board decision. 38 C.F.R. § 3.105. On August 13, 2018, the Veteran submitted a claim for anxiety disorder secondary to a medical condition, which the RO accepted as a claim of increased ratings for other specified trauma and stressor related disorder (previously diagnosed as PTSD, also claimed as anxiety disorder). The RO denied the Veteran's claim in a December 2018 rating decision. The Veteran submitted a NOD in June 2019. In July 2019, the RO issued an SOC on the issue. Contrary to the Veteran's representative's May 4, 2021 statement, the July 2019 SOC was in response to the June 2019 NOD. The July 2019 SOC was not related to the March 1997 claim, as that claim had already been finally adjudicated in the November 2013 and November 2015 Board decisions. In response to the July 2019 SOC, the Veteran filed a timely VA Form 9 in September 2019. Between the November 2013 and November 2015 Board decisions and the August 2018 claim, the Veteran did not submit any other claim concerning his psychiatric disorder. Therefore, the current date of claim is August 30, 2018, which means the current period on appeal begins August 30, 2018. Also, the Board acknowledges that, in a May 5, 2021 statement, the Veteran's representative asserted that the Veteran is entitled to an effective date earlier than April 3, 1995 for his award of service connection for PTSD. As noted above, this issue was last adjudicated in a final Board decision from November 2015. See 38 C.F.R. § 3.160(d). The Veteran did not allege clear and unmistakable error, and he did not submit a motion to vacate the November 2015 Board decision. See 38 C.F.R. § 3.105. Additionally, the RO has not adjudicated this issue during the period currently on appeal. Thus, the Board refers the issue of an earlier effective date for the award of service connection for PTSD to the RO at this time. Additionally, the Board acknowledges that, in the May 4, 2021 statement, the Veteran's representative asserted that the Veteran has current claims of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) and special monthly compensation (SMC). However, the Veteran was awarded a TDIU in a December 1997 rating decision with an effective date of December 12, 1997. Subsequently, as a result of a November 1998 rating decision, which included awards of service connection, the Veteran's combined disability evaluation was increased to 100 percent, effective June 8, 1992. Furthermore, the Veteran has been awarded special monthly compensation (SMC) and aid and attendance (A&A) for a period that includes the period currently on appeal. Therefore, the issues concerning a TDIU, SMC, and A&A are moot. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. 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. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Entitlement to increased ratings for an acquired psychiatric disorder The Veteran contends that he is entitled to increased ratings for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and other specified trauma and stressor related disorder is remanded. He also contends that he has a diagnosis of anxiety disorder that is separate from his service-connected diagnosis of PTSD. In an August 1995 rating decision, the RO awarded the Veteran service connection for PTSD with a 30 percent evaluation under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, effective April 3, 1995. In a May 2011 rating decision, the RO awarded an increased rating of 70 percent for PTSD, effective February 13, 2001. As discussed earlier, the Veteran filed the claim currently on appeal on August 30, 2018. Thus, the current appeal period before the Board begins on August 30, 2018, the date VA received the Veteran's current claim for an increased rating, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The 70 percent evaluation for an acquired psychiatric disorder, to include PTSD and other specified trauma and stressor related disorder, applies to the entire period currently on appeal. DC 9411 provides that an acquired psychiatric disorder should be evaluated pursuant to the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130. Under the General Formula, a 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is 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. Id. As the United States Court of Appeals for the Federal Circuit explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. VazquezClaudio v. Shinseki, 713 F.3d 112, 11617 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9413. Furthermore, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court held that the language of the general rating formula "indicates that the presence of suicidal ideation alone...may cause occupational and social impairment with deficiencies in most areas." However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran's service-connected psychiatric disability, and their resulting social and occupational impairment. On August 30, 2018, the Veteran filed a claim for an anxiety disorder secondary to his medical condition. He stated that he suffered with radiation proctitis causing increased anxiety. Along with his August 2018 claim, the Veteran submitted a letter in which his private counselor, Dr. C, stated that the Veteran suffers from prostate cancer with bowel and urinary incontinence. Dr. C stated that the Veteran was treated with external beam radiation therapy; and since that time, he has been bothered by radiation proctitis. Dr. C stated that this has caused an increase in the Veteran's anxiety and depression, as he fears a shortened lifespan. As a result, the Veteran was assigned an updated diagnosis of anxiety disorder secondary to his medical conditions. Dr. C reported that the Veteran currently has a constricted affect; and he continues to have flashbacks and nightmares. He shows signs of anxiety, depression, impaired judgment, difficulty adapting to stressful situations (including work-like situations), and an inability to establish or maintain effective relationships. At a November 2018 VA examination, the VA examiner diagnosed the Veteran with other specified trauma and stressor related disorder. The VA examiner acknowledged that the Veteran has previously been diagnosed with PTSD, but she stated that the Veteran has mild psychiatric symptoms that no longer meet the full criteria for PTSD. The VA examiner found that the Veteran does not have more than one mental disorder diagnosed, and the current diagnosis is a progression of his previously diagnosed PTSD and not a new or additional condition. The VA examiner found that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by medication. The Veteran exhibited symptoms of depressed mood. At the time of the November 2018 VA examination, the Veteran had been divorced for 40 years. He did not have children, and he lived alone. However, he was dating someone, and he had contact with relatives on a weekly basis. He had friends with whom he was in contact once or twice a week. He did his own household chores and also used a cleaning service. He went to grocery stores and restaurants about once a week, and he attended worship services monthly. He was able to drive and routinely attend to activities of daily living. The VA examiner noted that the Veteran's mental condition has not required any treatment; he was not seeing a mental health provider, and he was not taking psychiatric medication. He had good social support and was able to advocate for himself. The Veteran's eye contact, grooming, and hygiene were good. He was cooperative. His motor movements were unremarkable. He described his mood as indifferent. His affect was broad and congruent to speech content. His speech was of normal pace, rhythm, and volume. His thought processes were linear and logical. There was no sign of a thought disorder, delusions, or hallucinations. There were no obvious concerns about his memory. He was fully oriented to person, place, time, and circumstance. He was capable of managing his financial affairs. The Veteran stated that he has feelings of depression that can last two or three days or sometimes as much as a week. He can feel euthymic. He stated that the low moods started around 2009 when he had treatment for prostate cancer. He stated that his mood declined as he was treated with radiation and diagnosed with radiation proctitis. He has rectal bleeding and is concerned about his PSA numbers rising. He stated that, sometimes, when he is depressed, he feels worthless. The Veteran endorsed feelings of hopelessness. He stated that he does not know when or how long it is going to be, and he may end up dying because of his prostate cancer. The VA examiner found that the Veteran's responses were not consistent with major depression due to the brevity of the symptoms. The VA examiner asked the Veteran about any change in his interest in usual activities. The Veteran noted that, because of the prostate cancer, he is not able to engage in sexual relationships with females, and he feels inadequate because he has to go to the bathroom due to leakage and urgency. The VA examiner stated that his response was not consistent with anhedonia due to mood. The Veteran was also asked about fatigue or loss of energy, and the Veteran stated that he takes B12 injections once a month. The VA examiner stated that his response was not consistent with anergia due to mood. The Veteran denied any suicidal or homicidal ideation, intent or plan. He denied feelings of panic. The Veteran was asked about his sleep. He has sleep apnea and uses a CPAP. He stated that he has mildly delayed onset of sleep, and he tosses and turns from pain. He gets about four to six hours of sleep a night. He has bad dreams once or twice a month, and some dreams involve fighting someone. When asked about intrusive memories of Vietnam, the Veteran stated that there is not a day that goes by when he does not think about it. The VA examiner asked whether he has any physical reactions when reminded of the stressor, and the Veteran stated that it used to happen. He denied trying to avoid thoughts and feelings or external reminders about the stressor. He stated that, most of the time, he engages with other veterans of his age group who went to Vietnam. He sees a lot of violence on TV; and when he sees unnecessary shootings, they trigger his anxiety and depression. The VA examiner found that the Veteran's response was not consistent with clinically significant avoidance. When asked about anger, the Veteran stated that he is angered by seeing someone on TV being mistreated, bullied, or harassed. He stated that he can sometimes become very angry, but it depends on how someone approaches him. He denied having any angry outbursts in the past month. He noted that he has never become physical with anyone; he usually just walks away. He was asked if he had strong negative feelings, and he said, "Sometimes I am angry. I just don't want to look at the jumping through the hoops to get disability from the VA. It makes me angry." The VA examiner found that his response was not consistent with anger as a result of military stressors. The Veteran was asked if he feels distant or cut off from others; and he said he does most of the time. He denied having any difficulty experiencing positive feelings. He endorsed being hypervigilant and did not describe having an excessive startle response. The Veteran was asked about any problems with concentration or memory, and he stated that he can focus on something if he has to. The VA examiner asked the Veteran about anxiety. The Veteran stated that nothing really triggers it. He sometimes sees large explosions on TV, and he turns away from that. The VA examiner observed that, on the day of the examination, the Veteran did not endorse any clinically significant symptoms of anxiety, and his VA medical records are silent for anxiety. The VA examiner determined that it is less likely as not (less than 50 percent probability) that the Veteran has an anxiety disorder proximately due to or the result of prostate cancer with bowel and urinary incontinence. After the November 2018 VA examination, the RO issued a rating decision in December 2018 in which they denied the Veteran's claim of increased ratings for other specified trauma and stressor related disorder (previously diagnosed as PTSD, also claimed as anxiety disorder). The Board acknowledges the Veteran's assertions that he has anxiety and/or depression separate from his PTSD or other specified trauma and stressor related disorder. In a June 2019 NOD, the Veteran asserted that his PTSD is separate and independent of his other specified trauma and stressor related disorder. He stated that his anxiety with prostate cancer causes fear of shortened life span, intrusive thoughts, and constant agony. In a September 2019 VA Form 9, the Veteran also asserted that his anxiety disorder and depressive disorder are two separate diagnoses resulting from additional service-connected disabilities other than PTSD. However, the Board notes that the Veteran's rating for service connection for PTSD has been based in part on his symptoms of anxiety and depression. For example, in the August 2001 and May 2011 rating decisions concerning PTSD, the RO noted the Veteran's symptoms of anxiety and depressed mood as shown in a February 2001 VA examination. Thus, he has already been receiving benefits for anxiety and depression; and such symptoms are already adequately considered in the Veteran's 70 percent rating for an acquired psychiatric disorder, to include PTSD and other specified trauma and stressor related disorder. As a result, if VA were to assign the Veteran separate ratings for anxiety and/or depression, it would constitute impermissible pyramiding. Additionally, as noted earlier, the November 2018 VA examiner found that the Veteran does not have more than one diagnosed mental disorder, and the Veteran's current mental disorder is a progression of his previously diagnosed PTSD. Considering the evidence of record described above, the Board finds that the symptoms associated with the Veteran's acquired psychiatric disorder, to include PTSD and other specified trauma and stressor related disorder, have more closely approximated the type of symptoms described in the criteria for the currently assigned 70 percent disability rating. As noted earlier, the November 2018 VA examiner found that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by medication. The Veteran exhibited symptoms of depressed mood. See 38 C.F.R. § 4.130. The Board notes that the evidence of record from the period on appeal suggests that the Veteran's service-connected acquired psychiatric disorder may have improved during the period on appeal. However, the Board has focused its adjudication on whether a next higher disability rating is available to the Veteran. The Veteran exhibited no worse than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to such symptoms as depressed mood, flattened affect, impaired impulse control, and difficulty in adapting to stressful circumstances (including work or a work like setting). See 38 C.F.R. § 4.130. A higher rating of 100 percent is not warranted, as the Veteran's acquired psychiatric disorder did not result in total occupational and social impairment due to symptoms such 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. Id. Thus, based on the above, the preponderance of the evidence is against the assignment of an evaluation in excess of the currently assigned 70 percent for the Veteran's service-connected acquired psychiatric disorder, to include PTSD and other specified trauma and stressor related disorder. The Board acknowledges the Veteran's assertions that his acquired psychiatric disorder, to include PTSD and other specified trauma and stressor related disorder, is of sufficient severity to warrant a higher disability rating. However, the competent medical evidence offering specific determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. Thus, the Veteran's own assessment as to the severity of the symptoms and their relationship to the rating criteria are less probative than the opinions of medical practitioners who have specialized knowledge and skill in excess of him. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Moreover, the Board finds the report of the November 2018 VA examiner to be the more probative evidence of record concerning whether the Veteran's acquired psychiatric disorder, to include PTSD and other specified trauma and stressor related disorder, is severe enough to warrant a higher disability rating. The VA examiner's rationale is logical and well-reasoned and based on consideration of the Veteran's claims file, medical records, and post-service history. Thus, the Board is satisfied that the November 2018 VA examiner's opinion is competent, credible, persuasive, and probative for deciding this appeal. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran's acquired psychiatric disorder; however, the Board finds that, his symptomatology was stable throughout the appeal period for purposes of increased ratings for psychiatric disorders under VA regulations. Therefore, assigning staged ratings is not warranted in this case. The preponderance of the evidence is against the assignment of an evaluation in excess of 70 percent for the Veteran's acquired psychiatric disorder, to include post traumatic stress disorder (PTSD) and other specified trauma and stressor related disorder. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.