Citation Nr: 21042344 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-35 732 DATE: July 12, 2021 ORDER Throughout the period of appeal, entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted, subject to the law and regulations governing the payment of monetary benefits. FINDING OF FACT The Veteran's PTSD has been productive of symptoms that most nearly approximate severe symptomatology resulting in occupational and social impairment with deficiencies in most areas, but not total social and occupational impairment. CONCLUSION OF LAW Throughout the period of appeal, the criteria for a 70 percent initial rating for PTSD, but not higher, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1961 to September 1963 and from October 1963 to April 1991, to include service in the Republic of Vietnam. He also had service in the Naval Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with the initial evaluation assigned for service-connected PTSD, and the present appeal ensued. In a June 2018 Decision Review Officer (DRO) decision, the AOJ partially granted the Veteran's appeal seeking an increased evaluation; the 30 percent initial evaluation was increased to 50 percent from October 3, 2014, to October 15, 2018, and the 30 percent initial evaluation was continued, thereafter. As this determination did not result in a full grant of the benefits sought on appeal, the issue remains in appellate status and has been recharacterized to reflect the "staged" initial evaluation created by the AOJ's actions. AB v. Brown, 6 Vet. App. 35, 38-39 (1993); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's appeal was previously before the Board in December 2018, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. Preliminary Matter The Board observes that the Veteran has filed a formal claim seeking a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) during the pendency of his appeal seeking an increased initial evaluation for his service-connected PTSD. The Board further acknowledges the Court's holding in Rice v. Shinseki, 22 Vet. App. 447, 452 (2009), that entitlement to a TDIU is part and parcel of any claim or appeal seeking an increased evaluation. However, an appeal seeking a TDIU was subject to a Board remand issued in February 2020 as a part of a separate appeal stream. The issues remain in remand status and are being developed for readjudication by the AOJ. In light of above, the current appeal is found to be distinguishable from Rice, and the Board will defer readjudication of entitlement to a TDIU as not to duplicate efforts or overstep the AOJ's jurisdiction of this issue. The Board further notes that as it is assigning a higher rating in this case, any decision with respect to the TDIU should be deferred until the AOJ has had an opportunity to implement the increased rating. With regards to the Veteran's other two claims of entitlement to service connection for acid reflux disease to include as secondary to service-connected disability, and entitlement to service connection for constipation to include on a secondary basis that were remanded by the Board in March 2021, the AOJ have not yet issued a Supplemental Statement of the Case (SSOC); thus, they also currently remain in remand status pending further development by the AOJ. Increased Rating for PTSD Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's service-connected PTSD has been evaluated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under this code, a 30 percent rating is provided 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, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is provided 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 the difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is provided for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability of the veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The symptoms associated with the rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A Veteran may only qualify for a disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration that result in the levels of occupational and social impairment provided. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). To adequately evaluate and assign the appropriate disability rating to the Veteran's service-connected psychiatric disability, the Board must analyze the evidence as a whole and the enumerated factors listed in 38 C.F.R. § 4.130. Mauerhan, 16 Vet. App. at 436. As this claim was certified to the Board after August 4, 2014, Diagnostic and Statistical Manual of Mental Disorders 5 (DSM-5) is applicable to the claim. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the frequency and severity of his current symptomatology that is observable to the senses. Layno v Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11(1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). 1. Entitlement to an increased initial evaluation for service-connected PTSD, currently evaluated at 50 percent disabling prior to October 3, 2014, and 30 percent disabling as of May 16, 2018. The Veteran was granted an initial 30 percent rating for his PTSD disability in a January 2015 rating decision, effective October 3, 2014, the date of his claim. The Veteran filed a Notice of Disagreement (NOD) in December 2015. In a subsequent June 2018 rating decision, the RO partially granted the Veteran's appeal by assigning a 50 percent evaluation from October 3, 2014, the date of the claim, to May 15, 2018, and continuing the 30 percent evaluation from May 16, 2018, and thereafter. AB v. Brown, 6 Vet. App. 35 (1993). The RO based its 50 percent disability rating prior to May 16, 2018, on the findings of a January 2015 VA examination, and 30 percent, effective May 16, 2018, on the findings of his current VA examination. January 2015 VA Examination During the Veteran's initial January 2015 VA examination, the VA examiner confirmed that the Veteran's meets the DSM-5 criteria for a PTSD diagnosis, and he was also diagnosed with Adjustment Disorder with Depressed Mood. The Veteran's specific symptoms included anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The Veteran reported the gradual onset of anxiety related symptoms years after his return from Vietnam, with the secondary onset of depression over the latter few years in response to unfulfilled time (not working, no hobbies). Further, that he was prescribed Fluoxetine 25 mg, but reported minimal satisfaction with his treatment interventions, and skepticism regarding continuing his treatments. The Veteran also denied a history of suicidal/homicidal ideation, plan, intent, or attempts. He reported that he has been married to his second wife (his marriage of three years to his first wife ended in a divorce) for forty-three years and described their relationship as satisfactory. He also reported that he has three adult children: one biological son and two stepdaughters, and that he has a poor relationship with his son (due to his son's history of incarceration), but a relatively satisfactory relationship with his stepdaughters. The Veteran stated a significant decrease in the size and quality of his social support network since his military service, which he attributed to his anxiety symptoms, that he spends much of his time with his wife, socializes little with others, and attempts to avoid social outings. He reported feeling depressed and anxious around others, but denied past or present illusions, hallucinations, or delusional beliefs In terms of behavioral observations, the examiner reported that the Veteran was well-groomed, and he was oriented to person, place, situation, and time, and alert and focused; that he reported deficits in concentration, but denied problems in perception, attention, or memory functioning. The examiner found the Veteran's motor functioning unremarkable, with his speech noted as of a normal rate, tone, and volume, and that he was coherent and spontaneous. Based on all of the above findings, the examiner determined that the Veteran exhibits an overall occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner recommended that the Veteran attend individual psychotherapy to address anxiety and depression symptoms and to continue to take his psychiatric medication to help manage his mood and anxiety symptoms, specifically noting that the Veteran did not appear to pose any threat of danger or injury to himself or others. May 2018 VA Examination During the Veteran's subsequent May 2018 VA examination, the examiner referenced the Veteran's prior January 2015 for comparison. First, that the Veteran is not currently in a mental health treatment program or medication management; that his current reported mental health symptoms are difficulty sleeping (initiation and maintenance) also due to itching and nightmares, that he still does not like crowds and he continues to experience depression and irritability management. Further, that the Veteran continues to deny experiencing delusions, and any current suicidal/homicidal intent and plan; however, the Veteran reported that he did have suicidal thoughts one month earlier (April 2018), but without intent or plan. In terms of behavioral observations, the examiner reported that the Veteran was well-groomed, cooperative and attentive, but scratching many parts of his body continuously; speech: a normal rate & volume, spontaneous with evidence of speech impediment; affect: mood congruent, irritable; thought process/content: linear, goal-directed; reality based. With regard to his social history, the Veteran reported that he is still married to his wife and they live in a house they own, describing his relationship with her as "good at times, sometimes not as good." He described his relationship with his adult children (1 son and 2 stepdaughters) and as "better," and that he has a granddaughter and 2 grandsons with whom he a poor relationship. Regarding his social interactions, the Veteran reported that he does not get out much socially, but he goes to Hardees to sit and talk with friends and attends church occasionally. He also reported being a member of Eagles club and attending meetings every other week. The examiner specifically opined that the severity of the Veteran's PTSD is estimated to be decreased as the Veteran is not reporting an increase in symptoms and is not in psychotherapy or medication management for PTSD or any other mental disorder and that he has not sought any mental health treatment for his PTSD since his last VA examination in January 2015. Consequently, the examiner's overall assessment was that the Veteran's occupational and social impairment was due to mild or transient symptoms with decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms that were controlled by medication. Pertinent Treatment Records The record is devoid of treatment records between the Veteran's two VA examinations, but does reflect subsequent evaluations/reports, noted as follows: March 2020 in a call placed by the Veteran, he self-reported that from time to time he contacts the 1-800 number and talks with people. Also, that his energy level is low, appetite is fair, and that he is experiencing anxiety/depression, deceased level of sleep quality/quantity. The Veteran also stated that he had experienced suicidal ideation a few weeks ago but denied experiencing such currently. He also did not report auditory or visual hallucination. The nurse that took this call reported the following observation that the Veteran's thought pattern was linear and goal oriented, and his speech pattern was within normal rate, volume, and rhythm without distress noted in voice tone. She also noted that the Veteran answered questions appropriately and offered no acute complaints. During an April 2020 mental health evaluation, the Veteran reported that he is having difficulty sleeping and having nightmares (for 2 months), that he does not have any interest in social activities, and only walks his dog; he acknowledged that he had no current suicidal thoughts or plan or intent. In another call placed in May 2020, the Veteran reported that he is currently taking Lorazepam (5 mg) as needed, and that he was on and off Zoloft (50 mg). He reported that he was still having nightmares/flashbacks from his combat experience in Vietnam, and startle responses, getting easily angry, irritable, being watchful all the time, and still experiencing difficulty with sleeping; that he continues to avoid crowds. He denied feeling severely depressed but acknowledged that he gets moody. The physician noted that the Veteran did not report any symptoms of psychosis, paranoia, grandiosity, including any current or recent hallucinations or delusions, and that he specifically denied manic and hypomanic symptoms, and any auditory verbal hallucinations (AVH) or suicidal/homicidal ideations. In July 2020, during a telephonic mental health evaluation, the Veteran reported that he has continued taking Zoloft, but that he is still having nightmares, flashbacks, getting irritable and angry, and having anxiety. He denied having any current or recent hallucinations or delusions or suicidal ideation, intent, or plan. Similar complaints were reported during his October 2020 and November 2020 respective telephonic evaluations - feeling depressed, down and sad, low energy, low concentration, denied feeling of hopelessness or helplessness, getting more frequent nightmares and flashbacks, having startled responses, being more isolated; he also denied any current suicidal ideation, intent or plan. During his December 2020 mental health evaluation, the Veteran reported a slight improvement - that his mood is stable, and that he is not depressed or sad, although he is still having nightmares and flashbacks, but not as frequently, and he is sleeping better. He also denied manic and hypomanic symptoms and any current suicidal ideation, intent, or plan, but noted that he was still having startled responses, and not able to socialize with others. Analysis Upon review of the totality of the evidence, although the May 2018 VA examiner has characterized the Veteran's impairment as occupational and social impairment with reduced reliability, the Board finds that the symptoms reported throughout the period of appeal reflects symptoms that have resulted in impairment in most areas throughout the pendency of the appeal, and thus, more nearly approximates a disability rating of 70 percent, notwithstanding the RO's partial grant of an initial rating of 50 percent from October 3, 2014, and 30 percent as of May 16, 2018, and thereafter. Although the RO relied on the May 2018 VA examiner findings that the Veteran's PTSD symptoms are mild, resulting in the Veteran's disability rating of 30 percent as of the May 16, 2018, VA examination, the Board notes that the examiner specifically reported that his rationale was based on the fact that the Veteran had not sought mental health treatment in over 3 years (January 2015 to May 2018). The Board does not find this to be a persuasive basis to maintain a 30 percent disability rating, as it does not necessarily mean that the noted severity of the Veteran's symptoms did not continue to exist. As reported during his January 2015 examination, the Veteran had expressed reservations with regards to continuing treatment because he did not think his treatment was working. Thus, this indicates another viable explanation for him not seeking further mental health treatment at that time. Furthermore, when the Veteran subsequently sought treatment following his May 2018 VA examination, his complaints remain constant (similar to that reflected in his January 2015 VA examination) and reflect a continuation of severe symptomology: still having nightmares and flashback from his combat experience in Vietnam, startled responses, getting easily angry, irritable, watchful all the time, difficulty sleeping and avoiding crowds, all of which interferes with routine activities that meets the 70 percent rating criteria under DC 9411. The Board finds that in giving the Veteran the benefit of the doubt, the Veteran has manifested these severe symptoms throughout the period of appeal. Thus, reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Consequently, the Board finds that the evidence of record supports a 70 percent rating for the Veteran's PTSD throughout the period on appeal. However, the Board also finds that at no point during the period on appeal was the Veteran's PTSD manifested by symptoms in support of the next highest rating of 100 percent - such as, gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, or memory loss for names of close relatives, or his own name, or an overall level of symptomatology supportive of a higher rating. While the record reflects that he has not worked since May 2010, and that the Veteran's social functioning is impaired, he has not been found to be totally socially disabled, as he has still been able to maintain a long relationship with his wife of over 46 years, he reports that he continues to have a "satisfactory" relationship with his stepdaughters and that his relationship with his son has improved since his January 2015 VA examination, notwithstanding his report of a poor relationship with his grandchildren. More importantly, although the Veteran reported that he does not want to socially interact with others, particularly in a crowd setting, he has acknowledged being a member of the Eagles club, attending meetings regularly, sometimes meeting with friends, and attending church occasionally. The record also does not establish that the Veteran has gross impairment in thought processes or communication, intermittent inability to perform activities of daily living, or disorientation to time or place, persistent delusions or hallucinations, or persistent danger to hurting himself. Although the Veteran has reported having some past occasional suicidal thoughts, there is no evidence that his anxiety and depressed mood have risen to the level of the Veteran being a persistent danger of hurting himself and/or others. Finally, the Veteran has not reported any memory issues, particularly with regards to memory loss of his own name, or close relatives, or an overall level of symptomatology supportive of the highest disabling rating of 100 percent. Therefore, based on all of the foregoing, the preponderance of the evidence is against a finding that the Veteran's PTSD disability more nearly approximates total occupational and social impairment. As such, a 100 percent rating is not warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.