Citation Nr: 21041168 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-18 063 DATE: July 8, 2021 ORDER Prior to February 5, 2016, a rating in excess of 30 percent for posttraumatic stress disorder (PTSD), is denied. From February 5, 2016, a rating of 70 percent, but not higher, for PTSD effective, is granted. FINDINGS OF FACT 1. Prior to February 5, 2016, the severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. From February 5, 2016, the severity, frequency, and duration of the Veteran's PTSD symptoms has more closely approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, but not total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for PTSD prior to February 5, 2016, have not been 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 (DC) 9411. 2. The criteria for the award of a 70 percent, but not higher, for PTSD, effective from to February 5, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to July 1972. The case is on appeal from a January 2016 rating decision. In February 2019, the Veteran testified at a Board hearing. In March 2019, the Board remanded the case for further development. Thereafter, in a July 2020 rating decision, the RO increased the PTSD rating to 70 percent effective October 17, 2019 and granted entitlement to special monthly compensation based on housebound criteria effective from October 17, 2019. The increased rating matter remains in appellate status as the maximum rating has not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A rating in excess of 30 percent for PTSD prior to October 17, 2019; and in excess of 70 percent thereafter. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's PTSD has been evaluated under the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, DC 9411. A 10 percent rating is warranted for PTSD where there is 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 continuous medication. A 30 percent rating is assigned for PTSD for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). 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 when 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 cause total occupational and social impairment. Under the 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). Background and Facts The Veteran is seeking an increased rating for his service-connected PTSD. He filed this claim in November 2015 and contends the assigned 30 percent rating does not reflect the severity of his symptoms. In a July 2020 rating decision, the RO increased the PTSD rating to 70 percent effective October 17, 2019. Historically, the Veteran underwent a VA examination in December 2014 in connection with an earlier claim. At that time, the examiner noted a diagnosis of PTSD and determined 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. With regard to the Veteran's social and family background, the examiner noted the Veteran was married twice and divorced once. At the time of the examination, the Veteran was married for 12 years and had two stepchildren. The Veteran reported that his homelife is "OK" and due to his insomnia, he and his wife sleep separately. The Veteran reported that during his free time, he spends at home with his grandchildren and doing yard work. He reported having a few friends and denied having any involvement in any community activities. With regard to occupational and social history, the Veteran reported after his military service, he worked as a dental technician for 40 years, and stated that he is still employed part time. The Veteran also stated that his job was going well, and he denied any productivity or attendance problems based on his psychiatric difficulties. Concerning the Veteran's mental health history, the examiner noted the Veteran was referred to the VA psychiatric staff for problems with anxiety, painful memories, insomnia, and an exaggerated startle response the previous summer. He was diagnosed with PTSD and began treatment with a psychiatrist and attending group therapy. The examiner noted that the Veteran had no history of suicidal behavior. With regard to symptoms, the examiner reported the Veteran experienced anxiety, chronic sleep impairment, disturbances of motivation or mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner also noted that the overall severity of the Veteran's condition was mild to moderate. The Veteran underwent an additional VA examination in December 2015 in connection with his claim for increase. At that time, the examiner reported a diagnosis of PTSD. With regard to occupational and social impairment, the examiner determined that the Veteran has a mental condition that has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning. The examiner reported since the Veteran's last examination in December 2014, the Veteran continues to live with his wife, but his wife's sister in-law and her two sons moved in. The Veteran reported this as stressful. The Veteran reported his relationship with his wife continues to be "OK." He also stated that he has a few friends in the area. With regard to work, the Veteran stated he continues works part time in a dental lab with one other person with whom he gets along. Concerning symptoms, the Veteran reported he believes his symptoms are worsening and reported decreased ability to concentrate since working for a Vietnamese dentist, due to memories of his service in the Republic of Vietnam, an increased startle response to loud noises, and anxiety from hearing Vietnamese language. The Veteran also reported he thinks his symptoms have become harder to deal with over the past few years due to aging. He stated that he is not as talkative, and he does not like being around large crowds. The Veteran denied suicidal or homicidal ideation. With regard to symptoms, the examiner reported that the Veteran experiences a depressed mood. The Veteran provided a letter from his treating VA psychologist in April 2016. She stated the Veteran had horrific experiences in Vietnam that caused significant difficulties in his life. She noted that he is treated in group and individual therapy and takes medication for his condition. She also stated that although the Veteran participates in treatment, he continues to have significant PTSD problems. The Veteran provided a lay statement in February 2019. He recounted his traumatic experiences from his service in the Republic of Vietnam and described his current PTSD symptoms. He stated that he was forced to close the account of a Vietnamese dentist he held because hearing the Vietnamese language spoken at the dentist's office caused him to reexperience traumatic events from his service in the Republic of Vietnam. He also described experiencing an exaggerated startle response to loud noises such as fireworks and balloons popping. He noted experiencing feeling of guilt for his actions during the Vietnam War and his mental state caused him to be withdrawn and contributed to the end of his first marriage. The Veteran also stated that in the past, he contemplated suicide and he is relieved to have been recently diagnosed with prostate cancer, as it may shorten his life. At his February 2019 Board hearing, the Veteran testified that he has had suicidal thoughts because he is unable stop thinking about his traumatic experiences during the Vietnam War. He also stated he avoids crowds and experiences memory impairment. Concerning his occupation, the Veteran stated he works as a dental technician and tries to stay busy to distract himself from thinking about his traumatic experiences. He also stated that he works with one other person and gets along well with him. The Veteran testified further his condition is worsening. Pursuant to the Board's March 2019 remand, the Veteran underwent an additional VA examination in October 2019. At that time, the examiner diagnosed PTSD and major depressive disorder. The examiner determined the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Concerning recent social and family history, the Veteran reported that he has been married to his current wife for 20 years and endorsed good marital satisfaction. Concerning relevant occupational history, the Veteran reported that he went to school to become a dental lab technician. He was initially hired by a dentist but found that self-employment was more suitable. He has since been self-employed for the past four decades and noted that this has allowed him to avoid working around other people. He also stated in the past he had to cancel accounts with Vietnamese dentists or dentist with offices in neighborhoods with high populations of Vietnamese residents. He stated that he is interested in retiring, however he gets too overwhelmed with all the memories that he decided to continue working as a distraction. In regard to the Veteran's relevant mental health history, the Veteran endorsed frequent nightmares and frequent intrusive thoughts, both spontaneously and with triggers. The Veteran described intractable depression that has worsened in recent years and that he was relieved to learn of his prostate cancer diagnosis so that he could possibly end his suffering. The Veteran also reported that he continued to experience chronic hyperarousal. With regard to symptoms, the examiner noted that the Veteran experiences depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation or mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; and suicidal ideation. Concerning behavioral observations, the examiner noted the Veteran was alert and oriented to person, place, time, and situation. She also noted that the Veteran's thought process was linear with no evidence of hallucinations, delusions, or obsessive thinking. The additionally noted that the Veteran's insight and judgment were good. The evidence of record also includes VA treatment records from the appellate period. VA treatment records reflect that the Veteran participated in individual therapy with medication management and various types of group counseling for PTSD throughout the appellate period. Specific details of these records will be discussed in more detail as they pertain to the analysis below. Analysis After engaging in a holistic analysis assessing the severity, frequency and duration of the signs and symptoms of the Veteran's PTSD, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples and when looking at the effects determining the impairment level, the Board finds an earlier increased rating is warranted. During the course of the appeal, the RO increased the rating for the Veteran's PTSD from 30 percent to 70 percent effective October 17, 2019 based on the date of a VA examination. However, after reviewing all of the evidence, the Board finds that the evidence supports that a factually ascertainable increase in disability as of February 5, 2016, the date of a VA treatment record indicating that the Veteran complained that his PTSD symptoms were steadily worsening, rather than the arbitrary October 17, 2019 VA examination date. However, prior to February 5, 2016, the Board finds a rating in excess of 30 percent is not warranted and the criteria for a 100 percent rating is not supported at any point during the appeal period. See Vazquez-Claudio, 713 F.3d at 117; Bankhead, 29 Vet. App. at 22. The Board finds that prior to February 5, 2016, the severity, frequency, and duration of the Veteran's symptoms more closely approximated the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. See 38 C.F.R. § 4.126. As noted, the examiner who provided the December 2014 VA examination determined that the overall severity of the Veteran's disability was mild to moderate. The December 2014 VA examination and December 2015 VA examination and note symptoms consistent with the 30 percent rating criteria including anxiety, depressed mood, and chronic sleep impairment. Although the examiner who provided the December 2014 examination noted additional symptoms consistent with a 50 percent rating including disturbances of motivation or mood, and difficulty in establishing and maintaining effective work and social relationships, these symptoms appear to have a minimal impact on the Veteran's occupational and social functioning. At the time of the December 2014 VA examination the Veteran reported that his job was "going well" and he denied any productivity or attendance problems based on his PTSD. At the time of the December 2015 VA examination, the Veteran reported getting along well with his co-worker. In addition, the Veteran also reported at the time both the December 2014 VA examination and December 2015 VA examination that relationship with his wife was "OK". Moreover, VA treatment record reflect that psychiatrist managing the Veteran's medication characterized the Veteran's condition as mild. See e.g., April 2015, June 2015, September 2015 VA treatment records. The Board acknowledges VA treatment records from March 2015 reflect the Veteran expressed passive suicidal ideation. This symptom is contemplated by at least the 70 percent criteria and is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 70 percent or 100 percent disability ratings. The Veteran's passive suicidal ideation in March 2015 does not appear to have impacted his occupational or social functioning, as described above. In addition, other contemporaneous VA treatment record reflect that the Veteran expressed no desire to harm himself or others. Rather, the Board finds the level of impairment caused by the Veteran's symptoms more closely approximated the level associated with a 30 percent rating. The Veteran experienced occupational and social impairment with only minimal decrease in work and efficiency, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. In addressing this earlier period, the Board determines that the evidence received within one year of the prior January 2015 rating decision does not substantiate any earlier claim even with consideration of 38 C.F.R. § 3.156(b). Instead, from February 2016, the Veteran's psychiatric symptoms increased in severity and his PTSD approximates occupational and social impairment with deficiencies in most areas. In this regard, a February 5, 2016 VA treatment record reflects that the Veteran reported that his PTSD symptoms were increasing steadily. At that time, he also reported that his symptoms were interfering with his work and although he expressed no desire to harm himself or others, he expressed that he sometimes wishes he was not here. Worsening of the Veteran's symptoms at this time is confirmed by a notation made by the Veteran's treating psychologist. She stated that the Veteran "is evaluated as doing very poorly" and explained that his current stressors are exacerbating his PTSD symptoms, particularly his intrusive thoughts about his service in Vietnam. The Veteran also stated at the time of the February 2019 Board hearing that his symptoms were worsening. Further, the October 2019 VA examiner indicated symptoms of disturbance of motivation and mood; difficulty in establishing and maintaining work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and suicidal ideation. Therefore, when resolving reasonable doubt in the Veteran's favor, the Board finds a 70 percent rating is warranted from February 5, 2016, the date of the VA treatment record. See Swain, 27 Vet. App. at 219. This is the earliest a factually ascertainable increase occurred. While an increased rating to 70 percent is warranted, a further increase to 100 percent for total occupational and social impairment is not warranted at any time during the appeal period. The Board acknowledges the severity of the Veteran's PTSD symptoms including depressed mood, anxiety, panic attacks, chronic sleep impairment, difficulty in adapting to stressful circumstances; an inability to establish and maintain effective relationships; and suicidal ideation. However, the evidence does not support that his PTSD causes total occupational and social impairment. Concerning occupational impairment, the evidence establishes that the Veteran continues to maintain part-time employment. See e.g., October 2019 VA examination report. In regard to social impairment, the evidence establishes the Veteran maintains a long-term marriage and endorsed good marital satisfaction. See e.g., October 2019 VA examination report. Furthermore, a disability that justifies a 100 percent rating is so severely disabling that some of the examples of symptoms include posing a "persistent" threat of danger to others, "gross impairment in thought processes or communication," not knowing one's own name, the names of close relatives, or one's occupation, and an inability to perform activities of daily living, including maintenance of even minimal personal hygiene. The Board determines the Veteran has not exhibited such symptoms. These symptoms are consistently absent throughout the appellate period as VA treatment records show that the Veteran was always oriented to time, place, situation; his thought processes were organized, his thoughts were free of delusions; and he always appeared well groomed. In sum, the Board finds that prior to February 5, 2016, a rating in excess of 30 percent for PTSD is not warranted. However, from that date, an increased PTSD rating to 70 percent, but not higher, is supported. See 38 U.S.C. § 5017(b); 38 C.F.R. §§ 3.102, 4.3. The benefit of the doubt has been afforded to the Veteran in awarding the increased rating to 70 percent and the preponderance of the evidence is against higher ratings during the appeal period. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Gray, 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.