Citation Nr: 22010337 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 18-40 837 DATE: February 23, 2022 ORDER Entitlement to an initial rating in excess of 30 percent prior to August 26, 2021, and in excess of 50 percent thereafter, for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. Prior to August 26, 2021, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. From August 26, 2021, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent, prior to August 26, 2021, and in excess of 50 percent thereafter for PTSD, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from May 1967 to December 1968. This appeal arises from a June 2018 rating decision by the Department of Veteran's Affairs (VA) Regional Office (RO) granting service connection for PTSD at an initial rating of 30 percent disabling. The Veteran timely appealed the initial rating, requesting a 50 percent rating and a hearing before the Board on his July 2018 Notice of Disagreement (NOD). While this appeal was pending, the Veteran filed a Fully Developed Claim for an increased rating claim for his PTSD in August 26, 2021. On November 22, 2021, the Veteran withdrew his hearing request before the Board. On November 24, 2021, the RO granted an increased rating of 50 percent disabling for the Veteran's PTSD with an effective date of August 26, 2021. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate "staged" ratings may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to an initial rating in excess of 30 percent disabling for posttraumatic stress disorder (PTSD) prior to August 26, 2021 The Veteran contends his PTSD should be rate at 50 percent. See July 2018 NOD. The Veteran underwent a VA examination in May 2018. The examiner verified the diagnosis of PTSD and found it to be the only mental health disorder present. The examiner noted that the Veteran's PTSD caused occupation 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. He found no evidence of traumatic brain injury (TBI). The examiner reviewed the entire file, including Veteran's treatment history, lay statements, and statements in support of the claim. The examiner noted symptoms including depressed mood, anxiety, chronic sleep impairment, irritability, flashbacks, and hypervigilance. The examiner observed that the Veteran was cooperative and friendly throughout the evaluation, was well-dressed and groomed. He noted the Veteran's thought process was coherent and goal directed with no evidence of hallucinations, delusions, or paranoia. The examiner observed that the Veteran was oriented to person, place, and time, that his attention, concentration, and memory appeared to be intact with full range affect. The examiner observed the Veteran was appropriately tearful and depressed when speaking of his traumatic experiences. The examiner noted the Veteran is capable of managing his own finances. The examiner noted no suicidal or homicidal ideations, intents, or actions. The record also shows the Veteran was receiving mental health treatment at the VA prior to and after the May 2018 examination. Beginning as early as June 2017, the treatment record notes the Veteran reported struggles with anger outbursts, intrusive thoughts when faced with triggering items of situations, difficulty controlling emotions, isolation, depression, flashbacks, nightmares, and guilt. All of these symptoms were expressed while on medication. For example, a June 2017 Mental Health treatment note identifies depressed mood with anxious affect. The provider found the Veteran to be alert and oriented, calm, coherent, with no active psychosis, no hallucinations or delusions. The Veteran denied suicidal or homicidal ideations, plans, or intentions. The examiner noted the Veteran had adequate impulse control, fair judgment, and fair insight. These same observations were made in numerous mental health notes from there on. See e.g., July 2017 through July 2021 Mental Health Treatment Notes. Though the Veteran reported numerous symptoms, Mental Health Treatment Notes of record identify that the Veteran's PTSD symptoms under control while taking his medication. See e.g., April 2018 Mental Health Treatment Note. The Mental Health Treatment Notes also identify the nightmares the Veteran does experience are infrequent. See e.g., May2019 Mental Health Treatment Note. As such, the reported symptoms by the Veteran are determined to be less severe by trained mental health providers. Further, the Veteran reported not having an exacerbation of his PTSD symptoms, no violent or homicidal ideations. He described his mood as good with his affect being mood congruent. Treatment providers noted normal speech, organized through process, no hallucinations or delusions, having flashbacks with intrusive memories of his trauma but not feeling overwhelmed by them. They noted good insight, intact judgment, and normal impulse control. See Mental Health Treatment Notes from August 2019 to July 2021. The Board finds that the Veteran's symptoms more closely approximate those of a 30 percent rating, identified by 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. The evidence of record establishes nearly all of these symptoms listed including chronic sleep impairment, depressed mood, anxiety, and panic attacks (weekly or less often. The evidence shows the Veteran is motivated to identify triggers, reactions, and work on coping mechanisms for his PTSD. A higher, 50 percent rating is not warranted prior to August 26, 2021. A 50 percent rating is warranted in circumstances of 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; difficulty in establishing and maintaining effective work and social relationships. The Board notes these increased symptoms are not present prior to August 26, 2021. The Veteran's affect was noted as full range or anxious at worst. The record does not indicate that the Veteran has impaired memory, judgment, or abstract thinking. These are all noted as being fair, adequate, and intact on multiple occasions before and after the Veteran's May 2018 examination. The Board also reviewed the Veteran's statement in support of his claim and the Veteran's spouse's statements in support of the claim. The spouse's statement in support describes violent outbursts, chronic trouble sleeping, anxiousness in crowded places to the point of avoiding them. She described an instance where the Veteran was startled by a firecracker, running for cover with her. The spouse identified that the Veteran's symptoms have intensified and become more frequent as the Veteran has aged. The medical evidence of record supports the heightened startle response, chronic trouble sleeping, and anxiousness. However, none of the records note violent outbursts and all note adequate impulse control. In fact, the Spouse's observations are counter to the Veteran's mental health treatment records showing the Veteran reporting decreasing symptoms with passage of time. See e.g., July 2020 Mental Health Treatment Note (the Veteran's sleep has been adequate and he is having less frequent nightmares). As such, while the spouse is competent to report observed symptoms, her reports are not consistent with the symptoms and trends reported by the Veteran or noted in the record by mental health professionals. The Board also notes that there is no timeframe for when the Veteran's spouse observed these symptoms. The described events may have occurred just as stated, they are not supported by evidence of record during the period on appeal. Therefore, the medical treatment records are found to be more probative of the Veteran's current condition. The lay statements in support of the Veteran's claim identify occasional disturbances of mood. The evidence of record identifies these occurring based on triggering incidence, such as finding memorabilia and letters from Vietnam or seeing children who remind the Veteran of his trauma in Vietnam. As such, these occurrences are occasional, and the Veteran is able to still function satisfactorily with routine behavior and self-care. See June 2017 through July 2021 Mental Health Treatment Notes. Further, the Veteran's is able to maintain effective work and social relationships, as evidenced by his relationship with his wife. Based on the above evidence, the Board finds that the Veteran's symptoms more closely approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks that warrants a rating of 30 percent disabling. For the foregoing reasons, the Board concludes that, as the evidence persuasively favors against an increased rating in excess of 30 percent disabling prior to August 26, 2021. The evidence is not in approximate balance and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). 2. Entitlement to an initial rating in excess of 50 percent disabling for posttraumatic stress disorder (PTSD) from August 26, 2021 to present In a November 2021 rating decision, the Veteran was granted a 50 percent rating, with an effective date of August 26, 2021, for his PTSD based on a September 2021 VA examination. The RO based this increase on findings of anxiety, chronic sleep impairment, depressed mood, difficulty in adapting to a worklike setting, difficulty in adapting to stressful circumstances, difficulty in adapting to work, disturbances of motivation and mood, suspiciousness, and 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 normal conversation). Board finds the increased rating and effective date beneficial findings of fact it will not disturb. It is unclear from the record whether the Veteran is satisfied by a 50 percent rating based on his August 2021 claim for an increased rating for PTSD. Therefore, the Board reviews the evidence of record to determine if a higher rating is warranted. The Board finds that the Veteran's disability picture does not more closely approximate a 70 percent rating after August 26, 2021. A rating of 70 percent is warranted 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. The Board reviewed the September 2021 VA examination and August 2021 private examination. The August 2021 examination identifies generalized anxiety disorder and major depressive disorder, moderate, recurrent as the Veteran's diagnosis while the VA examination identifies PTSD. Each of these mental health disorders is rated on the same scale, the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Both the August 2021 private and September 2021 VA examinations note 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. Both examinations identify the following symptoms: recurrent, involuntary, and intrusive distressing memories of traumatic events, recurrent distressing dreams, flashback, avoidance of or effort to avoid external reminders of the that arouse distressing memories, persistent negative emotional state, hypervigilance, exaggerated startle response, sleep disturbances, depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, difficulty adapting to stressful circumstances, including work or work like settings. Both examiners noted that the Veteran is capable of managing his own financial affairs. The two examinations differ on some symptoms. The August 2021 private examination notes irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression towards people or objects, and impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks. The September 2021 VA examination notes problems with concentration, disturbances of motivation and mood. The VA examination further noted that the Veteran' was responsive and cooperative. His mode of dress was appropriate, he was well-groomed, his posture and motor behaviour were normal, eye contact was appropriate, speech intelligibility was fluent, and the quality of his voice was clear with receptive and expressive language skills. The examiner noted his thought process was coherent and goal-directed with no evidence of hallucinations, delusions, or paranoia. The Veteran's affect was full range and appropriate to speech and through content. The examiner noted the Veteran's mood was somewhat anxious, his insight and judgment were good, and his sensorium was clear. The Board notes all of the symptoms and considers them in their totality. Review of the evidence of record, including symptoms noted on the August 2021 private examination and the September 2021 VA examination, shows that nothing indicates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The symptoms expected with deficiencies in most areas, such 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; 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 are notably absent. The Veteran's spouse did report some occasional violent outbursts at small things, which may be taken as an example of impaired impulse control. As discussed above, there is no timeframe for when this was observed, the treatment records note adequate impulse control for the entire period on appeal. See June 2017 through July 2021 Mental Health Treatment Notes. None of the three examinations of record identify impaired impulse control. There are no records or statements identifying impaired impulse control during the period. As such, the Board finds that the Veteran's disability picture does not more closely approximate one warranting a 70 percent disabling rating for PTSD. For the fore going reasons, the Board concludes that, as the evidence persuasively favors against an increased rating in excess of 50 percent disabling for the Veteran's PTSD. The evidence is not in approximate balance and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.