Citation Nr: 22016441
Decision Date: 03/22/22	Archive Date: 03/22/22

DOCKET NO. 20-07 451
DATE: March 22, 2022

ORDER

Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied.

FINDING OF FACT

For the period prior to March 8, 2018, the Veteran's PTSD has not been manifested by total occupational and social impairment.

CONCLUSION OF LAW

For the period prior to March 8, 2018, the criteria for a rating in excess of 70 percent 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 FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from May 1968 until his honorable discharge in February 1970, with service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Purple Heart Medal, Vietnam Service Medal with 2 Bronze Service Stars, Vietnam Campaign Medal, and Combat Infantryman Badge. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country.

This matter is before the Board on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office. 

In a December 2019 rating decision, the AOJ increased the rating for PTSD to 70% effective August 10, 2016, which is the date the Veteran filed his service connection claim.

The Veteran filed a timely VA Form 21-0958, Notice of Disagreement (NOD) and requested the Decision Review Officer (DRO) Review Process/Hearing. 38 C.F.R. § 3.2600. The Board acknowledges the Veteran requested, but was not provided, with a DRO hearing. In the subsequent December 2019 rating decision, the adjudicator advised, "based upon your contentions and the evidence, the DRO finds that a further delay in a determination is not necessary in the absence of additional medical evidence, at this time, so a DRO hearing will not be scheduled. The Veteran had an opportunity to request an optional hearing subsequent to the December 2019 rating decision with the Board of Veterans' Appeals and declined to do so. See February 2020 VA Form 9. As such, the Board will proceed with a decision.

Increased rating for PTSD.

The Veteran contends his PTSD warrants a rating higher than 70 percent prior to March 8, 2018. After a longitudinal review of the entire record, the Board concludes that the severity, frequency, and duration of the Veteran's PTSD symptoms did not cause the level of impairment required for a disability rating of 100 percent.

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. 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.

The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating 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.

While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, 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. 199 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Psychiatric impairment is rated under the General Rating Formula for Mental Disorders (General Formula). Under the General Rating Formula, a 70 percent rating is warranted where there is 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, Diagnostic Code 9411.

A 100 percent rating is warranted where 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.

As the United States Court of Appeals for the Federal Circuit has held, evaluation under 38 C.F.R. § 4.130 is "symptom driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under the regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas"  i.e., "the regulation . . . requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a).

The VA shall consider all information, lay and medical evidence of record, in a case before it with respect to benefits under the law administered by the VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Analysis

The Board has considered the Veteran's statements, the relevant treatment records, and the VA examinations. After engaging in a "holistic analysis" assessing the severity, frequency, and duration of the signs and symptoms of the Veteran's PTSD, the Board finds the criteria for a rating in excess of 70 percent has not been met or more nearly approximated. Throughout the period on appeal, his PTSD has manifested most closely to occupational and social impairment with deficiencies in most areas. See Vazquez-Claudio, 713 F.3d at 117; Mauerhan, 16 Vet. App. at 442.

In August 2016, the Veteran presented to the Mental Health Clinic at the Topeka VAMC to establish care, and obtain recommendations regarding his depression, anxiety, and insomnia. The Veteran reported intermittent "spells" of sadness and irritable mood, feelings of depression and anxiety, chronic insomnia, flashbacks, and nightmares. He indicated he has "good days" and "bad days", which he described as feeling irritable and angry. He reported avoidance of social functions, crowds, and always "being on guard." He stated he retired in 2008, and presently worked part-time as a custodian. The physician diagnosed "rule out" PTSD, unspecified anxiety, unspecified depression, and unspecified insomnia. The Veteran was referred to Dr. S.B., a psychiatrist.

A September 2016 VA mental health record shows the Veteran was seen for evaluation of medication and psychotherapy, and to monitor PTSD and depression. The Veteran described his PTSD and depression as "moderately severe; he has problems with crowds and has a temper problem. It is worsened by certain smells and sounds. It is modified by isolating and fishing." 

A November 2016 VA mental health record shows, with respect to the Veteran's PTSD, the residual symptoms include nightmares, problems going into crowds, a decrease in the number of close friends, occasional sharp temper, "being on alert," and being easily startled. 

The Veteran submitted to a VA PTSD examination in December 2016. During the examination the Veteran reported being married and enjoying his grandchildren. He stated he retired in 2008. The examiner noted symptoms of exaggerated startle response and anxiety. The examiner observed the Veteran was neatly groomed, fully cooperative, with adequate insight and judgment. The Veteran added, "Dr. S.B. said, 'when you retire, PTSD begins to bother you. The thoughts and memories come back.'" The VA examiner remarked, "the claimant needs to seek follow-up treatment; he requires supportive counseling."

Throughout 2017, the Veteran always presented as alert and oriented, with appropriate hygiene, normal speech, and logical, and organized thought. The Veteran consistently described his PTSD and depression as moderately severe. With respect to PTSD, the residual symptoms included nightmares, problems going into crowds, a decrease in the numbers of close friends, occasional temper, being "on alert", being easily startled, with chronic sleep impairment. In February 2017, he reported not wanting to take medications for his PTSD.

In July 2017, Dr. S.B. stated the Veteran had the following PTSD symptoms: intrusive thoughts, accompanied by feelings of fear and anxiety; nightmares; flashbacks; a decrease in his friendship base; avoidance of crowds; hyperirritability; frequently being "on alert"; being easily startled; problems getting to sleep; and feelings of regret. Dr. S.B. remarked, "the Veteran tries to stay active but could not really work 40 hours a week at this time."

In October 2017, the Veteran stated that he was staying active. He enjoyed his grandchildren and was able to carry on a part-time job. The clinician stated that the Veteran "could not really work 40 hours per week at this time" and that "he is continuing to try to find useful ways to spend his time."

In January 2018, the Veteran described his PTSD and depression as moderately severe, worsening with certain smells and sounds, and modified with isolating and fishing. He stated he was staying active, enjoying his grandchildren and was able to carry on a part-time job. Dr. S.B. stated the Veteran's PTSD symptoms are as follows: intrusive thoughts accompanied by feelings of fear and anxiety; occasional nightmares; flashbacks; a decrease in his friendship base; avoidance of crowds; hyperirritability; frequently being "on alert"; being easily startled; problems getting to sleep; and feelings of regret.

The Veteran attended a VA PTSD examination in January 2018. The examiner diagnosed PTSD. In evaluating the criteria used for the current PTSD diagnosis, the examiner noted symptoms of recurrent distressing dreams, dissociative reactions, persistent negative emotional state, markedly diminished interest or participation in significant activities, hypervigilance, exaggerated startle response, problems with concentration, sleep disturbance, causing clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner observed the Veteran's symptoms included anxiety, chronic sleep impairment, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships. The examiner ultimately opined the Veteran's PTSD resulted in 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 Board has also considered evidence outside the period on appeal.

A treatment record dated March 8, 2018, the Veteran stated he was staying active, enjoying his grandchildren, and was able to carry on a part-time job. Dr. S.B. stated the Veteran's PTSD symptoms are as follows: Intrusive thoughts accompanied by feelings of fear and anxiety; nightmares; flashbacks; a decrease in his friendship base; avoidance of crowds; hyperirritability; frequently being "on alert"; being easily startled; problems getting to sleep; feelings of regret; panic attacks that occur in clusters and average more than once a week; inability to carry out complex commands; poor memory; disturbance of motivation and mood (good days and bad days); and problems establishing and maintaining effective work and social relationships (he has few contacts). Dr. S.B. remarked, "the above symptoms make work impossible. He is unemployable."

In August 2018, Dr. S.B. opined the Veteran "has been at the 100 percent level for PTSD since at least 2016, and more likely 2008." He remarked that the Veteran was good at his job and reasonably supported, so he was able to work until 2008, but had not been able to work a 40-hour work week since then.

In considering the evidence of record, under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to an increased evaluation for his service-connected PTSD prior to March 8, 2018. Simply put, the overall evidence is not reflective of total occupational and social impairment. 

The evidence shows that the Veteran has symptoms of hypervigilance, anxiety, isolation, chronic sleep impairment (insomnia), sadness, depression, mild memory loss, irritability, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in understanding complex commands, and panic attacks. However, the evidence does not show that these symptoms caused him total social and occupational impairment.

Although the Veteran was found to have hypervigilance and anxiety, he typically presented with normal speech, appropriate eye contact, and adequate insight and reasoning. He was consistently found to be appropriately groomed with good hygiene, and there is no indication that his psychiatric symptoms impaired his ability to care for himself or perform any activities of daily living. He reported having trouble with his memory and was found to have some mild memory loss. There is no indication however that the Veteran had a severe memory loss, such as memory loss for names of close relatives, his own occupation, or his own name. He denied ever being disoriented or forgetting the names or faces of his family and friends. The Veteran has never been found to be disoriented or to have illogical, obscure, or irrelevant speech. He has always been found to be fully oriented, and he has never been found to have a problem with delusions or hallucinations. VA examinations and treatment records do not reflect a persistent danger of hurting himself or others.

The Board has also considered the Veteran's symptoms which are not included in the rating criteria listed under 38 C.F.R. § 4.130 and whether they constitute symptoms that would be comparable in type and degree (frequency, severity, and duration) to the criteria for a 100 percent rating. The Veteran has been noted to have nightmares, flashbacks, persistent negative emotional state, hypervigilance, exaggerated startle response, and sleep disturbance, which have occurred with great frequency and varying severity. In addition, the Veteran has reported having anger outbursts. Although these symptoms are significant, the Board does not find that their severity is comparable to symptomatology required for a rating of 100 percent. 

The Board does not find the total social impairment necessary for a 100 percent rating. He has good relationships with his grandchildren. He has been married to his wife for decades and remains living with her. While his PTSD interferes in his marriage, a deficit in social functioning is reflected in the assignment of a 70 percent evaluation. He is shown to be actively involved in family life and caring for family members; he functions adequately in his home and community. Thus, there is no indication that the Veteran's PTSD rendered him totally socially impaired.

In addition, the Board does not find the total occupational impairment necessary for a 100 percent rating. The Board acknowledges S.B.'s finding that the Veteran was 100 percent disabled since at least 2016 and that he was unable to work 40 hours per week. The Board does not deny that the Veteran's PTSD severely impacts his ability to work. However, not being able to work 40 hours per week does not equate to being unemployable. The Veteran worked part-time as a custodian during the period on appeal. He also volunteered with veteran funerary services and the VFW. His ability to remain employed part-time is evidence against a finding of total occupational impairment prior to March 8, 2018.

In sum, the weight of the persuasive evidence is against the assigment of a disability rating in excess of 70 percent for the service-connected PTSD prior to March 8, 2018. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the approximate balance of the evidence is against a rating higher than 70 percent, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, supra. The appeal for an increased rating is denied.

Finally, the Board finds that the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) has not been raised by the record as part of the Veteran's higher initial rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (the issue of entitlement to TDIU is part of a higher rating claim when that issue is raised by the record); see also Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (the issue of entitlement to TDIU is raised whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits"). Here, the evidence of record, including the Veteran's own statements, does not indicate that his PTSD has precluded him from securing and following substantially gainful employment. On the contrary, the examination reports and treatment records demonstrate that the Veteran has worked throughout the appeal period and has reported no history of missing any time from work. Although the Veteran reported that he was working part-time, there is no indication that such employment was marginal or protected. See 38 C.F.R. § 4.16 (a). The issue of entitlement to a TDIU has therefore not been raised. 

 

Rebecca N. Poulson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Grace Johnk, 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.