Citation Nr: 21042313 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-60 390 DATE: July 12, 2021 ORDER Entitlement to an initial rating in excess of 50 percent disabling for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's service-connected PTSD more nearly approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent disabling for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.7, 4.14, 4.31, 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1983 to April 1984 and from December 1990 to June 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by a Department of Veterans Affairs Regional Office (RO). In December 2018, the Board remanded this case. During the pendency of the appeal, a September 2020 rating decision granted an increased initial 50 percent rating. As this rating is not the maximum allowable, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings 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. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD The Veteran filed a service connection claim for PTSD in August 2014. That claim was granted in a July 2015 rating decision and assigned an initial 30 percent evaluation. A September 2015 rating decision continued the currently assigned 30 percent rating. The Veteran has appealed the initial rating. As noted above, a September 2020 rating decision granted an increased 50 percent rating. The evidence of record includes an August 2014 VA mental health record showing the Veteran endorsed difficulty sleeping, including nightmares and waking multiple times per night. She also reported not trusting anyone and symptoms of anxiety, road rage and irritability. In addition, she reported angrily lashing out at her children and that she felt like something was always going to happen to them. When asked about depression, she endorsed having a passive suicidal wish, but denied any active ideation, intent or plan, or any history of suicidal ideation or attempts. She also endorsed intermitted depressed/poor mood, guilt, poor energy and poor concentration. She denied any symptoms of mania or psychosis. See VA Medical Records Received September 2016. In October 2014, the Veteran reported being amazed that medication allowed her to sleep uninterrupted for 8 hours. She reported feeling refreshed and noted a marked decrease in her irritability with regular sleep. She also reported experiencing guilt that her children had witnessed domestic violence with her first husband, and that she was eventually able to get away from her abusive husband after being held captive for 2 days. She denied any suicidal or homicidal ideation and her thought process was logical and linear. She was noted as neatly groomed with normal speech rate, tone and volume. Her thought content was devoid of perceptual disturbances and her insight and judgement were noted as good. In December 2014, the Veteran reported being distressed about struggling to feel festive during the holiday season. In this regard, she reported holidays were particularly difficult for mail carriers. She also reported feeling more hypervigilant, and that she had woken up on several nights and was unable to fall back asleep. See VA Medical Records Received September 2016. A VA mental health record dated January 2015 noted continued dysthymia, although the Veteran was able to work a 40 hour week and interact with her family. When asked if she had difficulty with self-care, she became tearful and reported having problems liking herself. In this regard, she reported being very down on herself for neglecting routine dental care for many years. She did report having a loving relationship with her second husband. She reported that her hypervigilance had remained, but had somewhat subsided. In addition, she reported adequate sleep. She was noted as neatly groomed and dressed in her work uniform. Her speech had normal rate, tone and volume. Affect was noted as alternatively bright and sad and she admitted to feeling down. Her thought process was linear and logical and thought content devoid of any perceptual disturbances. The Veteran denied any suicidal or homicidal ideation. Insight and judgement were noted as good. See VA Medical Records Received September 2016. In May 2015, a VA mental health record shows the Veteran reported an improved mood since the weather became warmer and she was able to work outside. She did report some anger issues and concerns for her son. She also reported feeling more hypervigilant and nervous since receiving a veteran's award which triggered memories. The clinician noted she was neatly groomed and that her speech had a normal tone, rate and volume. Her mood was reportedly "up and down," and affect congruent with her mood. Her thought process was logical and linear, and thought content devoid of perceptual disturbances. The Veteran denied any suicidal or homicidal ideation. Her insight and judgement were good. See VA Medical Records Received September 2016. The Veteran underwent a VA PTSD examination in July 2015. The examiner noted a diagnosis for PTSD manifested by 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. In addition, the examiner noted diagnoses for alcohol, cocaine and opioid use disorder in sustained remission since 2010. The examiner further noted that it was possible to differentiate what symptoms were attributable to each diagnosis, but only noted symptoms related to PTSD in the report. The Veteran reported noticing worsening depression during the past year. She also reported having had thought about suicide in the past, but denied any current suicidal ideation, past attempt or hospitalization. The following symptoms were noted: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; irritable behavior and angry outbursts; reckless or self-destructive behavior; hypervigilance; exaggerated startle response; problems with concentration; and, chronic sleep impairment. The Veteran was adequately groomed, cooperative with a depressed mood and affect congruent with mood. Her thought process was logical and goal-directed. She denied any current suicidal or homicidal ideation, psychosis or mania. Her judgment was within normal limits and insight improved with recent treatment. The examiner concluded that the Veteran's PTSD symptoms caused clinically significant distress or impairment in social, occupational or other important areas of functioning. A July 2016 VA mental health record noted the Veteran was employed and that she looked forward to retiring in 6 years. She reported having a long-time boyfriend and that they planned to be married that summer. She also reported feeling hypervigilant and extremely nervous when her children were out with social activities in the evening. The clinician noted that she was neatly groomed and dressed in her work uniform. Her speech had normal rate, tone and volume. She reported that her mood was "up and down but ok" and affect congruent with her mood. Her thought process was logical and linear, and her thought process devoid of perceptual disturbances. She denied any suicidal or homicidal ideation. Insight and judgement were good. See VA Medical Records Received September 2016. In her November 2016 VA Form 9, Substantive Appeal, the Veteran reported symptoms of panic attacks, mood swings, depression and memory loss. She also reported that there had been times she had contemplated suicide. Continued nightmares, flashbacks and hypervigilance were reported in January 2017. The Veteran also reported that her symptoms limited her ability to work. Panic attacks were reported at least once per week with symptoms of breathing fast and palpitations. She also reported increased panic attacks and anxiety with good coping skills. She was not found to be a harm to hurting herself or others. Additionally, a VA mental health record dated March 2017 shows the Veteran reported getting married since she had last seen the clinician. She reported excessive worry over the safety of her daughter who was studying abroad, and her son. She also reported that her husband had been helpful in assisting her in challenging her cognitive distortions. Sleep was reportedly adequate with medication. The clinician noted she was neatly groomed and that she appeared younger than her stated age. Her speech had normal rate, tone and volume. She reported that her mood was "up and down but ok," and her affect was congruent with her mood. Thought process was logical and linear, and thought content devoid of perceptual disturbances or any suicidal or homicidal ideation. Insight and judgement were good and cognitive functioning grossly intact, although not formally evaluated. See VA Medical Records Received September 2019. The Veteran reported increased panic attacks and anxiety in April 2017. She also reported good coping skills and was not currently at risk of harming herself or others. She did report that she sometimes had trouble sleeping at night. A June 2017 VA mental health record shows the Veteran reported that her mood was "not bad" except for feeling anxious about her son who had minor legal charges. Her husband had reportedly been very helpful in helping her "work through things." Sleep was reported as adequate. The clinician noted the Veteran was neatly groomed and dressed in her work uniform. Speech had normal tone, rate and volume. Thought process was logical and linear, and thought content devoid of perceptual disturbances. She denied any suicidal or homicidal ideation. See VA Medical Records Received September 2019. In December 2017, a VA mental health record shows the Veteran reported that she needed to be seen by a clinician. When asked whether she was in crisis, she reported that "she was not going to commit suicide in the next 5 minutes." Another December 2017 VA medical record shows the Veteran reported feeling overwhelmed. No significant stressors were reported except that she worked as a mail carrier and it was the height of the busy season. Her co-workers and supervisors were reported as being supportive. She also reported having a good marriage and a supporting husband. Intermittent nightmares were noted, and she admitted to not sleeping well. The Veteran was neatly groomed and dressed in her work uniform. Speech had normal tone, rate and volume. She reported that her mood "was a wreck, now better," and her affect was congruent with her mood and tearful at times. Her thought process was logical and linear, and thought content devoid of perceptual disturbances. She denied any suicidal or homicidal ideations. Her insight and judgement were good. See VA Medical Records Received September 2019. In April 2018, the Veteran reported that her husband had died suddenly the past month. She was noted to be experiencing denial, anger, sadness and acceptance. The Veteran was neatly groomed with normal speech tone, rate and volume. She reported that her mood "was a wreck, now better." Affect was congruent with mood and tearful at times. Thought process was noted as logical and linear, and thought content devoid of perceptual disturbances. She denied any suicidal or homicidal ideation. Insight and judgment were good and cognitive functioning grossly intact, though not formally evaluated. In June 2018, the Veteran denied any suicidal or homicidal ideation. She was neatly groomed with normal speech. She reported "hanging in there" and found time off work following a motor vehicle accident helpful in her grieving process for her late husband. Her affect was sad and congruent with her mood. Thought process was logical and linear, and thought content devoid of perceptual disturbances. Insight and judgement were good. See VA Medical Records Received September 2019. In February 2019, a VA mental health record noted the Veteran continued to grieve the death of her husband. She reported coping by spending time with her daughter and son and was grateful for the distraction of working full time. She also reported looking forward to retiring in a few years. The Veteran was dressed in her work uniform and neatly groomed. Her speech had normal rate, tone and volume. Thought process was logical and linear, and thought content devoid of perceptual disturbances. She denied any suicidal or homicidal ideation. Insight and judgement were good. In July 2019, the Veteran reported a relapse with opioid and cocaine use after the death of her husband approximately 12 months prior. It was noted that she made the decision to seek substance abuse treatment a few weeks prior as her substance use had been getting out of control. She denied current opioid or cocaine cravings. The Veteran was fully oriented, and dressed in her work uniform with adequate grooming and hygiene. Short and long term memory were intact. He speech was clear and had normal rate, rhythm and volume. Her thought process was linear and overall mood spontaneous. Thought content was free of any perceptual disturbances, delusions or any suicidal or homicidal thought, intent or plan. The Veteran reported things were going much better, that her impulse control improving. Her insight and judgment were intact and fair. See VA Medical Records Received September 2019. An August 2019 VA medical record shows the Veteran reported that her work continued to go well and she denied any opioid use. She was noted as wearing her work uniform and had good hygiene. Her behavior was pleasant and cooperative. Speech had regular rate and volume. Her mood was "great" and affect euthymic. Thought process was organized and she denied any delusions, audio or visual hallucinations, paranoia or suicidal or homicidal ideation. Cognition was grossly intact and insight and judgement fair. A September 2019 VA mental health record noted fair hygiene and that the Veteran was wearing appropriate casual attire. She was fully oriented, calm and cooperative. Her speech had regular rate, volume, tone and prosody. Mood was pretty good, and affect euthymic and congruent with her mood. Thought process was linear, logical, and goal-directed, and her concentration and short and long term memory were intact. The Veteran denied any suicidal or homicidal ideation, and she denied any delusions or paranoia. Insight and judgement were fair. See VA Medical Records Received September 2019. The Veteran last underwent a VA PTSD examination in September 2020. The examiner noted a diagnosis for PTSD, moderate cannabis use disorder, and moderate opiod use disorder in sustained remission. The examiner found that it was not possible to differentiate what symptoms were attributable to each diagnosis. The Veteran's PTSD was manifested by 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 reported that she started taking Percocet in 2014 but that she had been clean for the past year. In addition, she reported smoking half a marijuana joint 3 times per week to manage her anxiety. She also reported experiencing suicidal ideation two years prior, but denied any current or past plan or intent. Irritability and agitation were reported as being often experienced. Depressive symptoms had reportedly increased over the past 2 weeks. The following symptoms were found: depressed mood; anxiety; suspiciousness; panic attacks that occurred weekly or less often; chronic sleep impairment; mild memory loss; flattened affect; impaired judgement; disturbances of motivation and mood; reckless or self-destructive behavior; exaggerated startle response; problems with concentration; and, impaired impulse control, such as unprovoked irritability with periods of violence. Finally, the examiner stated that the PTSD symptoms did not cause clinically significant distress or impairment in social, occupational or other important areas of functioning. The Veteran's service-connected PTSD is currently rated 50 percent disabling pursuant to 38 C.F.R. § 4.130, DC 9411. Under that diagnostic code, a 50 percent rating is assigned for a psychiatric disorder manifested by 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. Id. A 70 percent rating is assigned for a psychiatric disorder manifested by 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), or an inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is assigned for a psychiatric disorder manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process 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, and memory loss for names of close relatives, own occupation, or own name. Id. After a review of the evidence or record, the Board finds that an initial rating in excess of 50 percent disabling is not warranted. In this regard, the Board notes that the evidence of record does not show many of the symptoms contemplated by a higher 70 percent rating such obsessional rituals, speech intermittently illogical, obscure or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately or effectively, neglect of personal appearance and hygiene, or an inability to establish and maintain effective relationships. The Board does recognize that the September 2020 VA examination noted impaired impulse control such as unprovoked irritability with periods of violence, a symptom contemplated by a higher 70 percent rating. In this regard, an August 2014 VA medical record shows the Veteran reported lashing out angrily at her children. However, the evidence of record does show any periods in which the Veteran either reported, or was found to have, any periods violence. Instead, the record shows the Veteran has repeatedly reported coping by spending time with her children. Absent evidence of violent episodes, the Board finds that the symptoms noted in the September 2020 VA examination do not more nearly approximate the rating criteria associated with a higher 70 percent rating. The Board additionally recognizes the August 2014 VA medical record in which the Veteran reported having a passive suicidal wish. However, at that time, she also specifically denied any active ideation, intent, plan or related history. The Board also recognizes the Veteran's November 2016 VA Form 9 in which she reported having contemplated suicide at times. However, throughout the period on appeal, the Veteran's mental health treatment records routinely show that she repeatedly denied having any suicidal ideation. Accordingly, the Board finds that, throughout the period on appeal, the evidence does not support of finding of suicidal ideation as a current symptom. The Board also notes that the Veteran has repeatedly denied any homicidal ideations, delusions or hallucinations. The record further shows that, with regard to work and social relationships, the Veteran has reported having supportive family, coworkers and supervisors. Importantly, the Board finds it instructive that both the July 2015 and September 2020 VA examiners concluded that the Veteran's psychiatric disorder was manifested by occupational and social impairment due to mild or transient symptoms. Thus, in consideration of the Veteran's symptoms, both examiners determined that the severity of the psychiatric disorder more nearly approximated the criteria consistent with a 10 percent disability rating. Accordingly, based on the totality of the record, the Board finds that, throughout the period on appeal, the Veteran's symptoms have not more nearly approximated a higher 70 percent rating. Lastly, the Board recognizes the representative's December 2020 brief, in which it was requested that this matter be remanded to obtain an addendum VA examination report. In this regard, the representative asserted that the prior Remand "was specifically targeted towards the initial rating for PTSD" and that the AOJ had a responsibility to request the examiner to review all available treatment records and determine what symptoms applied at different stages of the appeal. The Board finds the representative's assertions without merit. In this regard, the prior December 2018 Board Decision specifically noted that a VA examination was necessary due to reports of worsening symptoms. The Board did not direct either the AOJ or the examiner to conduct a retroactive analysis of the Veteran's medical records. Instead, as noted in that Decision, the Veteran receives treatment at her VA medical center, which includes findings relevant to the current nature and severity of her service-connected PTSD throughout the period on appeal. Accordingly, the Board finds remanding the matter solely to obtain a retroactive analysis is not necessary, and would serve no useful purpose. In consideration of the above, throughout the period on appeal, the preponderance and probative evidence of record is against an initial rating in excess of 50 percent disabling. The claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.130; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.