Citation Nr: 21042574 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-35 811 DATE: July 13, 2021 ORDER Entitlement to a rating in excess of 50 percent for PTSD from March 17, 2014 to November 19, 2019 is denied. FINDING OF FACT Prior to November 19, 2019, the Veteran's PTSD most closely approximates occupational and social impairment with reduced productivity and reliability. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for PTSD prior to November 19, 2019 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.10, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1989 to December 1997. In May 2019, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans Appeals (BVA) in May 2019 for additional development. It now returns for further appellate review. While on remand, the Regional Office (RO) granted service connection for sleep apnea in an August 2020 Decision Review Officer (DRO) Rating Decision. Thus, the service connection claim for sleep apnea is no longer before the Board because a grant of service connection constitutes a full grant of benefits on appeal. Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). The DRO also granted a 50 percent rating for the Veteran's PTSD effective May 3, 2013 and assigned a 100 percent rating effective November 20, 2019. Here, the period between May 3, 2013 and November 19, 2019 remains on appeal as the Veteran did not receive the highest rating available. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (The Veteran is presumed to seek the maximum available benefit for a disability.) However, beginning November 20, 2019, the issue of an increased rating after that date is moot as the Veteran has been assigned the highest rating available. 1. Entitlement to an initial rating in excess of 50 percent for PTSD prior to November 19, 2019 The Veteran seeks a higher rating for his service-connected PTSD. See March 2017 VA Form 21, 526b, Veteran's Supplemental Claim. Legal Criteria The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. The Veteran contends that many of the symptoms he exhibits corresponds to those found in the 50, 70, and 100 percent rating criteria. 38 C.F.R. § 4.130. A veteran is entitled to a 50 percent rating if the disorder produces "[o]ccupational 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; difficulty in establishing and maintaining effective work and social relationships." A veteran is entitled to a 70 percent rating if the symptoms of the disorder causes: "[o]ccupational 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." The maximum 100 percent rating is warranted where the evidence shows: total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Assessing whether a particular rating is warranted "requires a two-part analysis." Emerson v. McDonald, 28 Vet. App. 200, 212 (2016). It requires an "initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas." Id. More generally, the rating analysis for psychiatric disorders is symptom driven. Golden v. Shulkin, 29 Vet. App. 221, 225 (2018); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013) ("The regulation's plain language highlights its symptom-driven nature."). The symptoms listed do not form an exhaustive list but rather serve as examples of the type and degree of symptoms that would justify the associated rating. See Bankhead v. Shulkin, 29 Vet. App. 10, 1819 (2017). And the "'frequency, severity, and duration' of a veteran's symptoms must play an important role in determining his disability level." Vazquez-Claudio, 713 F.3d at 117. Factual Background The Veteran is seeking a rating in excess of 50 percent for his service-connected PTSD, rated under Diagnostic Code 9411, 38 C.F.R. §§ 4.130. The Veteran has been rated at 50 percent for PTSD, effective from May 3, 2013. He filed a claim for increase in March 2015. Therefore, the relevant temporal focus for his claim is one year prior to the date of receipt of the claim, thus from March 17, 2014 to November 20, 2019. 38 C.F.R. § 3.400. The Veteran initially underwent a VA examination in March 2014 in connection with his claim for service connection. See March 2014 VA Initial Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire (DBQ). The VA examiner opined that the Veteran's PTSD resulted in 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. Id. The Veteran reported he was divorced with two children. His children live with their mother and he has little contact with them. He reported he was currently dating and had many friends. Id. He works at the Department of Homeland Security in the fugitive and gangs task force for the past 10 years. He stated he does not trust his supervisors and non-veteran coworkers. However, he gets along well with fellow veteran coworkers. Id. The Veteran denied any current psychiatric treatment including therapy and psychotropics. See March 2014 VA Initial Post Traumatic Stress Disorder (PTSD) DBQ. He endorsed problems with irritability and tends to walk away when irritated. He noted he has had verbal altercations. He denied any physical altercations, but he has held himself back when he felt irritated. Id. He also reported that he was involved in an altercation in the police academy during which he put "a finger" on one of the instructors which resulted in his release from the police academy. On examination, his PTSD was manifested by depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbance of motivation and mood. On mental status examination (MSE), the Veteran was casually dressed and unshaven. He denied any current homicidal or suicidal ideations. His insight and judgment appeared adequate. He was alert and oriented in four spheres. Id. A May 2015 VA treatment record noted that the Veteran was looking into VA care and was being followed for depression/PTSD by primary care physician only. See May 2015 VA Veterans Registry Clinic Note in CAPRI received June 2021. The VA physician recommended that he seek treatment for his PTSD. The Veteran was provided a VA examination in August 2015 pursuant to his claim for increase. See August 2015 VA Review PTSD DBQ. The examiner found that the Veteran's PTSD resulted in occupational and social impairment due to mild or transient symptoms with occasional decrease in work efficiency and ability to perform occupational tasks only during periods of significant stress. Id. The Veteran reported he was currently single and had trouble connecting with women. He noted that his daughters visit him and noted difficulty with communication with them. He sated he had a couple of friends who tried to get him to go out, but he no longer wants to go out. He also noted that he is not keeping in contact with his friends. Id. He attends church once a month. Id. The Veteran stated he is still employed with Department of Homeland Security. He has not had any reprimands and has received "all excellent[] and outstanding[] [ratings] on the job." Id. The Veteran noted he received counseling services through his employer, but denied use of psychotropics. See August 2015 VA Review PTSD DBQ. He endorsed continued irritabilities; however, he has not had any verbal or physical altercations. He reported sleep difficulties including troubling getting to sleep and frequently waking. He stated that he prefers to stay home and spends most of his time in his bedroom. The Veteran also stated that he was recently arrested for suspected driving under the influence due to making a wide left turn. He noted that "[h]e got into it with the policeman who pulled him over...." However, charges were later dropped. The examiner noted his PTSD symptoms included depressed mood, anxiety, chronic sleep impairment, and mild memory loss. Id. On MSE, the Veteran was casually and appropriately dressed. His speech was normal in rate and tone and thoughts appeared logical. He denied any suicidal ideation, and presented adequate judgment and insight. His orientation was intact. Id. During an August 2016 VA primary care annual physical, the Veteran reported he tries to stay away from people, gets flashbacks, and has night sweats. See August 2016 VA Primary Care Health and Physical Note in CAPRI received June 2021. His MSE revealed he was alert and oriented in three spheres and displayed appropriate communication. Id. A February 2017 report of contact indicated the Veteran requested mental health services. See February 2017 VA Report of Contact in CAPRI received June 2021. Consequently, the Veteran was seen by a VA psychiatrist in March 2017. During the initial assessment, the Veteran endorsed panic attacks but denied any suicidal ideation. See March 2017 VA Mental Health Initial Evaluation Note in CAPRI received June 2021. He also stated he worked full time as a police officer. The Veteran reported his mood was a "little anxious" and requested medication for sleep problems. See March 2017 VA Mental Health Physician Note in CAPRI received June 2021. On MSE, the Veteran had appropriate affect, denied any thoughts of harming self or others. Additionally, there was no evidence of mania, psychosis, or cognitive impairment. He was prescribed 50 milligrams of Trazodone as needed for insomnia. Id. On follow up in April 2017, the Veteran reported mild depression mainly due to his diabetes. See April 2017 VA Mental Health Note in CAPRI received June 2021. He was noted to be sociable and reported he felt fairly happy. The MSE revealed the Veteran was fully alert and oriented in all domains. He was pleasant and cooperative and appeared well-groomed. His though content was noted to be clear, organized, and relevant without any psychotic features. The Veteran's Patient Health Questionnaire (PHQ) score was nine (9) out of 27. A score of 9 reflects mild symptoms. Id. The Veteran reported that "the depressive symptoms made it not at all difficult to do his work take care of things at home, or get along with others." Id. In February 2019, the Veteran was seen by a VA psychiatrist for complaint of irritability and sleep problems. See February 2019 VA Mental Health Note in CAPRI received June 2021. He stated that Trazadone was not working. He reported he has been isolating himself. He noted difficulties at work and with his ex-wife. Id. The Veteran's MSE showed he was casually dressed, made good eye contact. His mood was depressed, and affect was restricted. His speech was normal in rate, tone, and amount. He was alert and oriented in four spheres. His insight was fair, and judgment was limited. Id. He denied any homicidal or suicidal ideations, or hallucinations. He was prescribed 20 milligrams of escitalopram for PTSD and depression on a trial basis, and his Trazadone was increased to 100 milligrams. He was also encouraged to seek psychotherapy. In an April 2019 followup visit, the Veteran reported no change in his psychiatric symptoms. See April 2019 VA Mental Health Physician Note in CAPRI received June 2021. His prescription for escitalopram was increased to 20 milligrams, and Trazadone was increased to 150 milligrams. Id. The Veteran testified at the May 2019 Board hearing before the undersigned VLJ. See Hearing Transcript. Specifically, the Veteran reported that his PTSD symptoms increased since his last VA examination in August 2015. Id. Since the last VA examination, he has been prescribed psychotropic medication. He reported increased irritability, does not want to go out or gather with his family, and isolating himself. He also reported panic attacks and mood swings. Id. In a June 2019 follow up appointment, the Veteran reported that he had difficulty leaving the house including for appointments and work. See June 2019 VA Mental Health Physician Note in CAPRI received June 2021. The MSE noted he had mild improvement from prior assessment. The Veteran appeared restricted affect and was casually dressed. His speech was normal, thoughts were linear, and goal-directed. He denied any homicidal or suicidal ideations as well as hallucinations. He was alert and oriented in four spheres and had intact recent and remote memory. His prescription for escitalopram was continued at 20 milligrams, and Trazadone was increased to 250 milligrams. In September 2019, the Veteran reported his medications were working. See September 2019 VA Psychiatry Note in CAPRI received June 2021. He reported improved sleep and that he was getting out the house. The MSE noted that the Veteran's symptoms were much improved from prior evaluation and that Veteran appeared at baseline. His mood was better, affect was full-range, and he denied any thoughts of harming self or others or psychosis. He displayed good insight and judgment, was oriented in all domains, and had fair attention and concentration. Id. His medications were continued. The Veteran underwent a VA examination in November 2019. Based on the examination findings, the Veteran was granted a 100 percent rating effective November 20, 2019 (the date of the examination). Analysis Currently, the Veteran is in receipt of a 50 percent rating, given such, the issue in this appeal is whether the Veteran's PTSD symptoms caused the level of impairment required for a disability rating of 70 percent or higher prior to November 20, 2019. After reviewing all of the evidence, the Board finds that Veteran's overall PTSD symptoms do not equate to a disability rating of 70 percent or higher. Based on the above-cited evidence, the Board concludes that the Veteran's PTSD results in social and occupational impairment with reduced reliability and productivity. To arrive at this conclusion, the Board, has done an initial assessment of the Veteran's symptoms. See Emerson v. McDonald, 28 Vet. App. at 212 (A particular rating is determined based on a two-part analysis, first discussing symptoms then occupational and social functioning). Essentially, the Board finds that the Veteran exhibited the following psychiatric symptoms throughout the appeal period: depressed mood; anxiety; suspiciousness; chronic sleep impairment; panic attacks more than once a week; mild memory loss; flattened affect; disturbance in motivation and mood; irritability; and difficulty in establishing and maintaining effective work and social relationships. The Veteran also had exhibited irritability, memory and concentration problems, sleep impairment, and increased anxiety with depression. See August 2015 VA Review PTSD DBQ. Notably, the Veteran's VA treatment records show the Veteran endorsed similar symptoms including depressed mood, sleep impairment, and anxiety. See i.e. February 2017 VA Report of Contact in CAPRI received June 2021(reporting a "little anxiety" and requesting medication for sleep problems. The 50 percent rating criteria specifically contemplates the aforementioned symptoms, including flattened affect, disturbances of motivation and mood, irritability, and difficulty in establishing and maintaining effective work and social relationships. The Board further notes that the Veteran did not exhibit any symptoms from the 70 or 100 percent during the relevant appeal period. See 38 C.F.R. § 4.7 (2018). Although the Veteran reported that he was prevented from completing police academy during the March 2014 VA examination, which would be indicative of impaired impulse control (a symptom of the 70 percent criteria), the Board notes that it is unclear when the incident occurred. See March 2014 VA Initial PTSD DBQ. Notably, the Veteran reported during the examination that he had worked at the Department of the Homeland Security for the past 10 years. As such, the evidence of one physical altercation at an unknown time is not sufficient to establish entitlement to a 70 percent rating. Similarly, the Veteran reported during the April 2015 VA examination that he was recently arrested and almost "got into it" with the officer due to making a wide left turn but that charges were later dropped. See August 2015 VA Review PTSD DBQ. The Veteran's report of almost having an altercation during the arrest does not reflect impaired impulse control because he did not state he was involved in an altercation with the officer. Notably, the Veteran consistently denied having any physical altercations with the above exceptions. See August 2015 VA Review PTSD DBQ. Nonetheless, the Board notes that exhibiting one or more symptoms within the identified criteria for a higher rating does not automatically trigger the granting of a higher rating; it is the overall disability picture that the Board must consider. See 38 C.F.R. § 4.7. Overall, throughout the appeal period the objective medical evidence indicates that the Veteran had normal MSE results such as alertness, orientation in three to four spheres, normal speech and thought process. Notably, he also consistently denied suicidal/homicidal ideations and there was no evidence of psychosis. The Board finds the frequency, severity, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. Notably, the Veteran denied receiving any psychiatric treatment including psychotropics during the March 2014 and August 2015 VA examinations which suggests mild symptoms especially in light of the fact that the Veteran later sought medications in February 2017 due to increased severity. Additionally, in April 2017 the Veteran reported that his PTSD symptoms did not interfere with his ability to work or his daily life. See April 2017 VA Mental Health Note in CAPRI received June 2021. This was also demonstrated by the Veteran's report that he was not reprimanded and received outstanding and excellent ratings. See August 2015 VA Review PTSD DBQ. Additionally, in April 2017 the Veteran scored 9 out of 27 on the PHQ-9 Depression Scale, which reveals mild depression. See April 2017 VA Mental Health Note in CAPRI received June 2021. In sum, the Veteran's symptoms were mildly severe and none of this evidence demonstrates that the Veteran's psychiatric symptoms met the frequency, severity, and duration required by the 70 or the 100 percent criteria, which are considered moderately severe and severe symptoms. The Board also considered the Veteran's reports of increased severity of his symptoms beginning in February 2019. For instance, he reported he was isolating himself more and had problems with ex-wife and at work. See February 2019 VA Mental Health Note in CAPRI received June 2021. Although, his medications were increased between February 2019 and June 2019, the Veteran continued to deny any homicidal or suicidal ideations and hallucinations, and displayed normal speech rate and tone. His thoughts were directed and goal oriented. See June 2019 VA Mental Health Physician Note in CAPRI received June 2021. The Board finds that the symptoms he endorsed were consistent with flattened affect, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. These symptoms are contemplated by the assigned 50 percent rating. The Board finds that the Veteran did not demonstrate symptoms consistent with the 70 percent rating criteria, where he consistently denied suicide ideations and was not shown to have obsessional rituals which interfere with routine activities or intermittently illogical, obscure, or irrelevant speech. Nor did the Veteran display near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively and was not shown to have spatial disorientation. The Board also considered whether a rating of 100 percent is warranted. However, after a review of the Veteran's symptoms and his social and occupational functioning, the Board finds that such a rating is not warranted. Notably, the Board is cognizant that rating of this disability is symptom driven, and from a review of the Veteran's symptoms, which were discussed above, they are not consistent with such a rating, where the Veteran has not exhibited any of the symptoms listed under the 100 percent rating criteria or symptoms similar to these symptoms. Even if the symptoms were exhibited, they do not reach the frequency, severity, and duration as noted under the 100 percent rating criteria. For instance, there has been no evidence showing that the Veteran's exhibits thought processes or communication which is as severe as gross impairment during the appeal period at issue. There has been no delusions or hallucinations that are persistent, behavior that has been grossly inappropriate, or that there is an inability to perform activities of daily living, or that he has memory loss that reaches a level where he does not remember his own name. In fact, the Veteran's VA treatment records consistently note that he denied suicidal and homicidal ideations, denied hallucinations, and had normal MSEs. Additionally, there is no evidence that the Veteran had total occupational and social impairment. As to the Veteran's occupational and social impairment, the March 2014 and August 2015 VA examiners opined that the Veteran's PTSD resulted in occupational and social impairment due to mild or transient symptoms with occasional decrease in work efficiency and ability to perform occupational tasks only during periods of significant stress, which is the level of impairment associated with a 30 percent rating. However, the Board will not disturb the Veteran's currently assigned 50 percent rating. In deciding the claim, the Board considered the lay statements from the Veteran, and finds that he is competent to report his PTSD symptoms that he experienced. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, these statements are not competent evidence as to a specific level of disability according to the appropriate diagnostic codes. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have examined him at various times during the current appeal and who have rendered pertinent opinions in conjunction with the physical evaluations. The medical findings as provided in the examination reports directly address the criteria under which this type of disability is evaluated. The Board, therefore, finds the medical findings to be of a greater probative value as to the current severity of the Veteran's PTSD than his statements. Given such, the Board does not find that a rating of 70 percent or 100 percent, as the record stands, is warranted. Thus, based on the foregoing, the Board denies a rating in excess of 50 percent for his service-connected PTSD for the entire period on appeal, as the weight of the evidence is against a rating in excess of 50 percent for the Veteran's PTSD. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.