Citation Nr: 22012883 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 17-38 290 DATE: March 7, 2022 ORDER A disability rating higher than 50 percent for posttraumatic stress disorder (PTSD) with alcohol use disorder prior to July 6, 2021 is denied. A disability rating higher than 70 percent for PTSD since July 6, 2021 is denied. FINDINGS OF FACT 1. Prior to July 6, 2021, the severity, frequency, and duration of the Veteran's PTSD symptoms resulted in no more than occupational and social impairment with reduced reliability. 2. Since July 6, 2021, the severity, frequency, and duration of the Veteran's PTSD symptoms result in no more than occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. Prior to July 6, 2021, the criteria for a disability rating higher than 50 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code (DC) 9411. 2. Since July 6, 2021, the criteria for a disability rating higher than 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to March 1971. In August 2019, he testified at a Board hearing held before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In November 2019, the Board denied an initial rating higher than 50 percent for PTSD with alcohol use disorder. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in an October 2020, Order, the Court granted a Joint Motion for Partial Remand (JMPR) vacating that decision and remanding it to the Board. This matter was remanded by the Board in March 2021 for additional development. In an October 2021 rating decision, TDIU was granted effective July 6, 2021. In March 2020, the Veteran submitted both a VA Form 21-0958, Notice of Disagreement, and a VA Form 20-0996, Request for Higher-Level Review (HLR) of the rating decision. The AOJ accepted the VA Form 20-0996 and in January 2022, a VA reviewer identified a duty-to-assist error and noted the TDIU issue was being developed for additional evidence. As such, the TDIU claim is a separate appeal continued under the AMA appeals process and is not before the Board for this decision. Increased Rating The Veteran is seeking higher disability ratings for his service-connected PTSD. Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is currently rated as 70 percent disabling under DC 9411, from July 6, 2021 and as 50 percent disabling prior to that date. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for 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. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if there is 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. Id. When determining the appropriate disability evaluation under the general rating formula, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F. 3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be due to those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d 112. The classification outlined in the portion of VA's Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130. prior to July 6, 2021 During the August 2019 Board hearing the Veteran testified that he was hypervigilant depressed, socially isolated, had disturbances in motivation and mood, difficulty with work and social relationships, memory impairment, and problems with attention and concentration. He also testified that he had suicidal thoughts maybe once or twice per month but did not tell his doctor about his suicidal ideations. See also lay statement received in January 2013. The 50 percent evaluation is based, in part on findings from VA treatment records which show that on multiple occasions the Veteran had no suicidal ideation or plan. See VA treatment records dated in October 2015, July 2016, and December 2016. These records also include an April 2016 suicide risk assessment which was negative. During a psychiatric evaluation in July 2016, the Veteran's chief complaints were problems sleeping and flashbacks. Mental status evaluation showed the Veteran was fully oriented with appropriate mood and affect. His thought process was normal and his thought content unremarkable with suicidal ideation, plan, or intent. There was no history of past suicidal attempts or gestures. Judgment and insight and impulse control were fair. When examined by VA in February 2017, the Veteran reported hypervigilance and impaired impulse control such as unprovoked irritability with periods of violence. Other symptomatology included depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and problems concentrating. Behavioral observations show the Veteran was adequately groomed and dressed, cognitively intact, and fully oriented. His mood was dysphoric mood with tearful affect. His thought process linear and goal directed, with no abnormal thought content present. Although the Veteran admitted to thoughts of being better off dead, he denied suicidal intent or plan. He reported being married to his present wife since 1969 and that he has two adult children and three grandchildren. While does not have friends with whom he socialized, the Veteran was close with his family. After service the Veteran worked for 36 years as an airport employee and retired in 2008. Since retirement, he spends most of his time at home, watching television or renting movies. The examiner concluded that the occupational and social impairment due to PTSD was most closely manifested by 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. Also, of record is a January 2021 medical opinion from a private medical provider who concluded that after examining the Veteran it was his opinion that the Veteran has been totally disabled emotionally and unable to function in any job due to his PTSD since at least March 1981. The Veteran was experiencing total occupational and social impairment due to symptoms including hypervigilance with auditory hallucinations, poor judgment, and psychomotor agitation/retardation. See January 2021 medical opinion from R.A. Sherman, Ph.D. The remaining record consists of VA outpatient treatment records between 2014 and 2021 which show continued monitoring of the Veteran's PTSD. These records are comprised of reports of behavior observed by medical staff during visits to the VA mental health clinic, as well as reports from individual psychotherapy sessions, and group therapy counseling. On entry shows the Veteran underwent a suicide risk evaluation in December 2018. At that time the social worker conducted a suicide risk assessment and found the Veteran to be a low risk as the Veteran had no intent, plan, or past attempts, history of inpatient hospitalizations, or access to lethal means. He had good family support. Subsequent suicide risk assessments in March 2021 and May 2021 were negative for suicide risk. See clinical records from Northport VA Medical Center and East Meadows Community Based Outpatient Clinic (CBOC) dated from 2008 to 2022. These VA treatment records also include multiple mental status examinations, which consistently show the Veteran was appropriately groomed and dressed with good hygiene. He was fully oriented, with good eye contact and normal motor activity and related appropriately with his healthcare providers. His speech was normal rate and speed and clearly articulated. The Veteran's mood was often described as neutral and congruent with affect. Concentration was good and memory was intact. The Veteran's insight and judgment were both generally good and his memory was intact. Thought process was linear and logical and though content showed no signs of audio/visual hallucinations or delusional thinking. He consistently denied suicidal or homicidal ideation and routine assessments show he was at low risk for suicide. There was no sign of impulsivity. Id. Applying the Veteran's psychiatric symptomatology to the rating criteria noted above, the evidence does not support the assignment of an evaluation greater than 50 percent prior to July 6, 2021. The lay and medical evidence shows that despite his difficulties due to PTSD, the Veteran was capable of managing his own financial affairs, and there was no indication that his judgment was poor, and his thinking was consistently noted as normal. His affect in general has been appropriate to mood and he has required no inpatient psychiatric treatment There was no indication of obsessional rituals, or abnormal speech. The Board acknowledges the Veteran's reports of irritability, hostility, and verbal aggression and recognizes that this suggests some impairment of impulse control. However, he has never engaged in actual assaultive behavior. There is also nothing in the record suggesting that the Veteran has been unable to perform activities of daily living, that he requires personal monitoring for safety, or that he is incapable of maintaining personal hygiene due to his PTSD. In addition, the Veteran has been able to maintain positive and supportive relationships with family members. There is also no evidence that PTSD was a primary cause of his unemployment in that the Veteran maintained a period of prolonged employment for 36 years with no indication of significant decreases in work efficiency. Further, the VA examiner specifically found that the frequency, severity, and duration of the Veteran's PTSD symptoms during this period, resulted in, at most, 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, consistent with the criteria for no more than a 30 percent rating. See Vazquez-Claudio supra. So, while the evidence clearly demonstrates that the Veteran's PTSD symptoms have been continuous, they are not equivalent, in frequency, duration or severity, to warrant the next higher evaluation of 70 percent which requires symptoms at a level of disability equivalent to deficiencies in most areas. The Board notes that despite the private psychologist's characterization of the Veteran's symptoms as total occupational and social impairment, thus falling within a 100 percent evaluation, this level of severity is not reflected in the clinical findings from VA records during the time period in question. The vast majority of the notations in the claims file show the Veteran specifically denied symptoms such as auditory and visual hallucinations or psychomotor agitation/retardation and the examiners repeatedly found no objective evidence of any perceptual disturbances to support the presence of such symptoms. Moreover, these VA treatment records were compiled during regular therapy sessions and outpatient visits by medical staff who are familiar with his condition. See Chisem v. Brown, 4 Vet. App. 169 (1993) (noting that there is no "treating physician rule" requiring the Board to give additional evidentiary weight to opinions of doctors who have evaluated or treated the Veteran over time but it is permissible for the Board to bear this length of treatment in mind when considering just how familiar with the Veteran's condition the clinician may be). Because of this, the 2021 private opinion, while not discounted, is entitled to less probative weight in view of the contrary evidence in the VA clinical records. The Board also acknowledges the Veteran's remote history of passive suicidal ideation in 2018 but the record reflects that he has repeatedly denied such thoughts since then and suggest that these ruminations were both passive and in the past. Bankhead v. Shulkin, 29 Vet. App. 10, 25 (2017). Also, to the extent the Veteran now argues that he downplayed his suicidal thoughts by not telling his doctor about them, the Board finds that his numerous statements denying such symptoms made at the time of treatment are particularly probative as they were reported consistently and made to medical professionals during regular therapy sessions for the purpose of obtaining treatment and not specifically made for the purpose of obtaining compensation. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran's recent recollections made in connection with his pending claim for VA benefits are less probative. Based on the foregoing, the Board finds that prior to July 6, 2021, the Veteran's impairment due to PTSD is most consistent with a 50 percent rating, Since July 6, 2021 The 70 percent evaluation is based, in part on findings from a July 2021 VA examination. The Veteran reported little change in his personal history or social functioning since his evaluation in 2017. Reported symptomatology included depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, memory impairment, flattened affect, disturbances of motivation/mood, difficulty adapting to stressful circumstances, including work or a work like setting, suicidal ideation, obsessional rituals, impaired impulse control, and neglect of personal appearance and hygiene. During the evaluation, the Veteran was open, cooperative, and casually dressed. He had linear and coherent thought process with no unusual thought content. Affect was wide-ranging and context-congruent. The Veteran is extremely concerned about safety and hypervigilant about potential danger in his surroundings. The Veteran is paranoid and suspicious of the intentions of others and is very irritable and easily angered with poor frustration tolerance. The Veteran drinks alcohol to escape or numb himself from distressing thoughts, feelings and memories connected to military traumas. In addition to depressed mood, increased irritability and anger, the Veteran experiences mood lability, anhedonia, low motivation to engage in activities or interact with others, sleep difficulties, feelings of guilt/regret/hopelessness, and concentration difficulties. The Veteran admitted to having suicidal thoughts at times but stated they were fleeting and that he has never made a plan or acted on them. After reviewing the Veteran's claims file, his self-reported medical history, and current symptoms, the examiner diagnosed PTSD with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted the Veteran may have under-reported the severity of his symptoms and daily difficulties. Applying the Veteran's psychiatric symptomatology to the rating criteria noted above, the Board finds that an evaluation higher than 70 percent is not warranted. His impairment cannot be described as "total," and the record does not show the type of cognitive and behavioral impairment reserved for a 100 percent evaluation. The symptoms required for such an evaluation are neither complained of nor observed by medical health care providers, including 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. Crucially, the presence of certain symptoms is not necessarily determinative. These symptoms must also cause the occupational and social impairment in the referenced areas. See Vazquez-Claudio, supra. While the evidence indicates some occupational impairment attributable to PTSD, the Board does not find that it reflects total occupational impairment, and, in any event, the Veteran did not also experience total social impairment. Despite interpersonal difficulties due to his PTSD, per his self-reported history, the Veteran had positive personal relationships. There is no evidence that his PTSD is the primary cause of his unemployment since by the Veteran's own admission he retired following 36 years of continuous employment. Moreover, the VA examiner specifically assessed that the frequency, severity, and duration of the Veteran's PTSD symptoms caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, which is consistent with the criteria for no more than a 70 percent rating. To the extent the Veteran has any social and occupational impairment attributable to PTSD, his overall symptomatology is not consistent with total social and occupational impairment. (Continued on the next page) Based on the foregoing, the Board finds that since July 6, 2021, the Veteran's impairment due to PTSD is most consistent with a 70 percent rating, Accordingly, the Board is not persuaded that the evidence supports the Veteran's claim. The evidence is not in approximate balance, or nearly equal, and therefore the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Bryant 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.