Citation Nr: 21042100 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-30 152 DATE: July 12, 2021 ORDER Entitlement to an initial rating of 50 percent for the period prior to May 18, 2017, and no higher, is granted. Entitlement to an initial rating in excess of 50 percent for the period from May 18, 2017 to December 22, 2020 and in excess of 70 percent for the period from December 22, 2020 through the present for post-traumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. With reasonable doubt resolved in favor of the Veteran, the service-connected PTSD manifested in occupational and social impairment with reduced reliability and productivity for the entirety of the period prior to December 22, 2020. 2. From December 22, 2020 through the present, the Veteran's service-connected PTSD has manifested in, at worst, occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 50 percent rating, but no higher, have been met for PTSD for the entire period prior to December 22, 2020. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.2, 4.3, 4.6, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a rating in excess of 70 percent for the period from December 22, 2020 through the present for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.2, 4.3, 4.6, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from December 1964 to October 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Regional Office (RO) of the United States Department of Veterans Affairs (VA) in North Little Rock, Arkansas. The Board notes that jurisdiction currently rests with the San Diego, California RO. The Veteran and his spouse testified at a hearing held before the undersigned Veterans Law Judge (VLJ) in January of 2020. A transcript of the hearing is associated with the claims file. Addressing the relevant procedural history, this claim was most recently before the Board in March of 2021 at which time it was remanded for additional development. More specifically, the case was remanded because the Board was unable to determine from the evidence of record what the Veteran's current rating for this condition was as there was conflicting evidence regarding whether the Veteran's rating had been increased to 70 percent as of November 27, 2020. The Board observes that on remand, additional development took place that included the RO issuing a rating decision in an attempt to correct any prior error. This additional development clarifies that the issues on appeal are as above-referenced. The claims have now been returned to the Board for adjudication and given the development that took place on remand, the Board will review the entire appeal period to determine whether a higher rating is warranted at any point. 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). Increased Ratings The Veteran seeks higher respective ratings for his service-connected psychiatric disability. Psychiatric disorders such as PTSD are rated pursuant to the criteria under 38 C.F.R. § 4.130, Diagnostic Code 9411. See General Rating Formula for Rating Mental Disorders (General Rating Formula). Relevant to the issues on appeal, under the General Rating Formula, a 30 percent rating is assigned when there is 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; weekly or less often panic attacks; chronic sleep impairment; or mild memory loss, such as forgetting names, directions, recent events. A 50 percent rating is warranted when there is 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned where there is objective evidence demonstrating 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; 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 work-like setting; and the inability to establish and maintain effective relationships. The next higher and maximum 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as 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 and place; memory loss for names of close relatives, own occupation, or own name. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). As a final initial matter, the Board observes that the Veteran's condition has previously been identified as "post-traumatic stress disorder (PTSD) with major cognitive disorder". However, as outlined in detail below, it has now been clarified that the Veteran has distinct diagnoses that manifest in distinct symptoms and as such, this issue has been recharacterized. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009). The Board also observes that the Veteran submitted a VA Form 21-526EZ in regard to a separate claim for "memory problems" (as well as three other conditions) in July of 2021, further confirming that these respective conditions should be evaluated separately. 1. Entitlement to an initial rating of 50 percent, and no higher, is warranted for PTSD for the entire period prior to December 22, 2020. In this case, the Board finds that a thorough review of the record indicates that the Veteran's PTSD manifested in symptoms that are more in line with a higher 50 percent rating, rather than the currently assigned 30 percent rating for the period prior to May 18, 2017. Therefore, a 50 percent rating, and no higher, is warranted for the entirety of the period prior to December 22, 2020. For example, VA treatment records indicate that in September of 2012, the Veteran self-referred himself for mental health treatment and reported that "he has needed to come for a long time". He was noted to be "depressed" and he asserted that "according to spouse he is getting worse". His affect was described as "somewhat blunted". He denied suicidal ideation but it was noted that he reported "a history of depression and alcohol use since returning from Vietnam, where he was involved in front-line combat in which he experienced significant trauma involving fear for his own well-being and witnessing the deaths of many. He reports a lack of closure with this experience, due to leaving early for a death in the family, but then being ordered to not return (as he had anticipated doing)." It was also noted that he had "chronic problems with daily outbursts and occasional crying spells. He has nightmares and night sweats approximately 2-3x weekly. His wife no longer sleeps in bed with him due to him acting out some of his dreams. He has difficulties initiating and maintaining sleep, noting he sleeps approximately 4 hours nightly. His wife notes that he is constantly watching the neighborhood. He almost shot an intruder in his backyard last year. He avoids crowds and does not often leave the house. [The Veteran] reports problematic drinking arouse[d] following his military service. He received a DUI in 1967." Notably, the Veteran was prescribed medication to target his mental health symptoms. October 2012 VA treatment records note that the Veteran was "seen six weeks ago for a diagnostic assessment, when he was prescribed fluoxetine and referred for STS. In the interim, he has been taking fluoxetine without side effects. He is enrolled in a weekly STS group, which he reports has been very beneficial for him. He reports stopping alcohol use and starting to cut down on nicotine use. He reports significant improvement in his mood, which his wife corroborates. Irritability has significantly improved. [His wife] notes that he continues to ta[lk] about his war experiences often. He denies SI, HI, and AVH." In April of 2013, the Veteran underwent an initial VA PTSD examination at which he reported multiple in-service stressors including witnessing killings while stationed in the Republic of Vietnam. The examiner stated that the Veteran was currently diagnosed with PTSD. Interestingly, the only noted symptom was chronic sleep impairment. Additional VA examinations in July of 2014 and November of 2015 also note chronic sleep impairment with the latter examiner also noting anxiety and depression. However, the Board notes that the additional treatment records throughout this period are clearly indicative of additional symptomology. These notations indicate that even with reported improvement in his symptoms at times, the Veteran continued to report having increased anxiety and rumination, continued chronic isolation, worsening hypervigilance, sleep disturbances, nightmares, worsening mood, and increased irritability. March 2015 VA treatment records, for example, indicate that "two months ago, dose of fluoxetine was increased to 40mg due to increased irritability. In the interim, he believes irritability may have decreased somewhat, although it is still present. He has noticed increased vividness of dreams, although non-distressing. Sleep continues to be somewhat restless, although energy level during the daytime remains good." With all doubt resolved in favor of the Veteran, the Board finds that these symptoms are more severe than the 30 percent rating currently assigned and instead align more closely with a higher 50 percent rating for the period prior to May 18, 2017. As such, a 50 percent rating is now assigned for the entire period prior to December 22, 2020. However, there is no evidence that a rating in excess of 50 percent is warranted for the period prior to December 22, 2020 for reasons similar to those that warrant the higher 50 percent rating for the period prior to May 18, 2017. The Veteran's symptoms manifested in ways that are most closely associated with a 50 percent rating. The most competent and probative evidence therefore indicates that symptoms associated with an even higher 70 percent rating are not demonstrated by the record. June 2017 VA treatment records note "frustrations over frequently forgetting things. He and wife are active in church, know their neighbors well, and have family nearby for assistance when needed. Sober from alcohol for almost 5 years. Reports good support through SUD group. Continuing good tolerance to Prozac. Continuing hypervigilance linked with PTSD." December 2017 VA treatment records note "no major changes. He endorses steadily worsening memory, but he is doing okay in [his] home environment. Wife helps him out; they are both retired so home together all day. Neighborhood is worsening, leading to more feelings of hypervigilance." He was noted to be "dressed casually, good grooming", with behavior that was "cooperative and pleasant". He had no noted psychomotor abnormalities and his mood was "okay". His affect was "euthymic, full, congruent" and his speech was "normal". His insight/judgement was "adequate". Other VA treatment records from this period contain similar notations even when noting the Veteran's increasing memory issues and hypervigilance. The medical evidence of record from this period indicates that the Veteran suffered primarily from sleep disturbances, depression, and anxiety, which are accounted for by the higher 50 percent rating now in place throughout the period prior to December 22, 2020. He was not otherwise shown to suffered from the symptoms contemplated by a 70 percent rating during this period, to include such symptoms as suicidal ideation and impaired impulse control. He also did not, as other notable examples, have obsessional rituals that interfere with routine activities or intermittently illogical, obscure, or irrelevant speech. He was noted to experience significant irritability and to feel threatened by crowds, especially around the Fourth of July, but that does not arise to the more severe symptoms contemplated by a higher 70 percent rating. While the Veteran's wife reported an incident where the Veteran reportedly "almost shot an intruder in his backyard", this appears to have been an isolated incident. This singular incident does not demonstrate that his PTSD symptoms result in situations such as unprovoked irritability with periods of violence. In addition, in contrast with an inability to establish and maintain effective relationships, the Board notes that the Veteran has been married to the same person for several decades, had relationships with other family members and was reportedly actively involved with his church during this period. He also reported hobbies such as fishing. There is also no indication that the Veteran has such a severe impairment to his thought process or content that he has lost spatial orientation, neglected his personal hygiene, or that he cannot function independently due to near constant panic or depression. It is apparent from the record that he suffers from self-isolative tendencies, but this and the other symptoms suffered by the Veteran during this period are accounted for by the higher 50 percent rating now being assigned. It does not appear from the totality of the evidence that his PTSD symptoms result in an inability to function in most settings. Rather, he consistently presented during this period for mental health intake as oriented, cooperative, adequately engaged, and with the ability to converse in a manner within normal limits and expectations. His mood was noted to be low and/or depressed at times. Otherwise, however, he appeared to be able to attend to his activities of daily living mostly independently and obtain his care as needed during this period. On the whole, then, the Board finds that an even higher 70 percent is not warranted for his PTSD for the period prior to December 22, 2020. 2. Entitlement to an initial rating in excess of 70 percent for the period from December 22, 2020 through the present for PTSD is denied. Continuing the above analysis, the Board finds that the reports of VA examinations, treatment records, and lay statements, overall, do not show that the Veteran's PTSD disability warrants higher than the 70 percent rating that has been assigned from the December 22, 2020 date when symptoms and impairment warranting such a rating were noted on a VA examination. In other words, at no time under consideration was the Veteran's condition of such severity as to warrant a 100 percent schedular rating. More specifically, an October 2020 VA examination report indicates that the Veteran had a concurring diagnosis of Major Neurocognitive Disorder Due to Multiple Etiologies in addition to the service-connected PTSD. However, that examiner declined to differentiate symptoms between these two conditions, instead stating "Both PTSD and Neurocognitive Disorder can produce memory deficits, irritability, and sleep disturbance. The veteran's diagnoses are comorbid with overlapping symptoms." Therefore, an additional examination with a VA examiner was provided in December of 2020 and an additional report was generated. At that time, it was clarified that "The neurocognitive disorder symptoms include memory deficits and impulsivity. PTSD: hypervigilance, intrusive memories of military trauma, exaggerated startle, panic, insomnia and depression." It was also noted "The PTSD is the primary diagnosis, but over time the dementia is likely to become the primary diagnosis." The Veteran, with assistance from his wife of over three decades, reported "He hasn't been physically aggressive. He hasn't had suicidal or homicidal ideation. He sleeps well but his wife says he talks in his sleep sometimes. He doesn't know if he has nightmares. He has intrusive memories about his Vietnam experience but doesn't know what triggers them. He avoids strangers. If they 'come at me the wrong way' he gets upset. He is hypervigilant and startles easily. He said, 'It would be hard to slip up on me. I stay on alert.' He needs to be reminded to bathe regularly. He has been having trouble with his memory for a number of months. He takes medication for dementia." The Veteran's symptoms were described at that time as depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; difficulty in understanding complex commands; impaired judgment; and neglect of personal appearance and hygiene. It was also noted that the Veteran's "Hygiene appeared fair. Mood was anxious and affect consistent to mood. Speech was clear. He was not oriented to date, president, or current events." The Veteran was noted to be incapable of managing his finances, but this was explained as "His memory deficits would keep him from managing money effectively." April 2021 VA treatment record notations indicate that the Veteran "denies any current thoughts of suicide and/or homicide." The following month at an appointment for an unrelated condition, notations of "No acute distress, conversant; Psych: AAOx3, Appropriate affect" were recorded. Overall, there is no evidence that the Veteran's PTSD manifests in symptoms such as persistent delusions or hallucinations; grossly inappropriate behavior; or persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or any other symptoms of similar gravity. While the Board acknowledges that the Veteran has been described as having "mild memory loss, such as forgetting names" which could arguably be interpreted as a symptom associated with the 100 percent rating criteria, the VA examiner also clarified that the Veteran's memory deficits and impulsivity are attributable to the Veteran's non-service-connected neurocognitive disorder, not his service-connected PTSD. Similarly, it is acknowledged that there is evidence indicating that the Veteran has some challenges with activities related to daily living, including with driving due to becoming lost, inability to manage funds effectively, and neglect of self-care including needing to be reminded to bathe. However, the objective evidence affirmatively indicates that each of these issues has been attributed to the memory issues associated with the Veteran's non-service-connected neurocognitive disorder. The Board has similarly considered the January 2020 VA treatment notation indicating that he had at that point, "last [been] seen by this author 1 month ago when decades - long PTSD symptoms were worsened". However, the December 2019 VA treatment notation by the same author indicates that, "over the past several months, patient has become more isolated" and had "continuing difficulties with short term memory loss. Does not drive himself places due to concerns about getting lost." Again, this references the Veteran's non-service-connected neurocognitive disorder. Further, he was reportedly, "Not as active around church due to accelerating age." That examiner also noted "increase[d] hypervigilance, likely linked with decreased feelings of being able to protect himself in light of chronic PTSD symptoms from combat in Vietnam. Wife notes that he talks more often about Vietnam, which is more distressing for him, her, and their marriage. He notes intrusive memories and nightmares of these experiences. He feels unsafe in his neighborhood, rarely leaving the house. Frequently watches out windows in order to detect possible dangers so that he can protect his wife. More irritability." However, while this examiner described this as a "worsening" of the Veteran's symptoms, the Board reiterates that reports of irritability, nightmare, intrusive memories, and hypervigilance are in fact present throughout the record at noticeably varying levels. As the objective evidence of record in regard to the Veteran's PTSD condition directly conflicts with this VA examiner's conclusory statement regarding a worsening, this statement is afforded low probative weight. Further, the Board again emphasizes that the ways in which the Veteran's condition had seemingly worsening at this point were related to his memory deficiency, which is unrelated to his PTSD for the reasons outlined elsewhere in detail. The Board also recognizes that the Veteran has reported that he has work-related issues due to his PTSD symptoms. Such impairment is explicitly contemplated by the schedular criteria. That the Veteran was not working at times during the period at issue does not by itself define his level of impairment and does not by itself demonstrate that a rating in excess of 70 percent is warranted. Specifically, it does not, in and of itself, demonstrate that the Veteran has total occupational and social impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9411. In the above discussion, the Board detailed the factors constituting the Veteran's overall disability picture. The Board has coordinated the Veteran's demonstrated level of impairment with the rating criteria. See 38 C.F.R. § 4.21. Overall, the Veteran's psychiatric symptomatology does not more closely approximate the level of severity contemplated by the criteria for a rating in excess of 70 percent. The Board acknowledges that the Veteran likely experiences multiple symptoms associated with a 100 percent rating, but the weight of the probative evidence weighs against indicating that these symptoms are attributable to his service-connected PTSD. Symptoms that have been clearly attributed to a condition that the Veteran has not been granted service connection for unfortunately do not suffice as a basis upon which to increase the Veteran's rating for his separate PTSD condition. Overall, the disability picture presented simply does not reflect a disability consistent with the criteria for a 100 percent schedular rating for PTSD, and therefore, a rating in excess of 70 percent for the period from December 22, 2020 through the present is not warranted. The Board has considered assigning further staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). For these reasons, the preponderance of the evidence is against the claim, there is no doubt to be resolved, and an increased rating is not warranted. 38 U.S.C § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). REASONS FOR REMAND Entitlement to a TDIU is remanded. While a VA Form 21-8940 was associated with the record in July of 2021 and it was indicated that the Veteran last worked in 2008 as a "floor manager", no information was provided in regard to any of the Veteran's former employers nor the details of his employment, to include why his employment ceased. Notably, the Board acknowledges that the Veteran has previously reported on separate occasions that he "retired" and that he was "laid off". As such, the Board cannot make a fully-informed decision until a completed form is associated with the claims file on remand for the sake of clarification and in order to determine whether any additional development needs to be undertaken. (Continued on the next page) 1. Request that the Veteran complete and return a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, Associate Council 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.