Citation Nr: 22016755
Decision Date: 03/23/22	Archive Date: 03/23/22

DOCKET NO. 10-34 479
DATE: March 23, 2022

ORDER

Entitlement to a rating in excess of 20 percent for lumbosacral strain with degenerative disc disease low back disability is denied.

Entitlement to a disability rating in excess of 30 percent prior to October 9, 2009, for posttraumatic stress disorder (PTSD) is denied.

Entitlement to a 70 percent rating from October 9, 2009, to April 12, 2011, for PTSD is granted.

Entitlement to a rating in excess of 50 percent from April 13, 2011, to the present for PTSD is denied.

Entitlement to an effective date of May 1, 2008, but no earlier, for total disability based upon individual unemployability (TDIU) is granted subject to the laws and regulations governing the payment of monetary benefits.

FINDINGS OF FACT

1.  The Veteran's low back disability is manifest by forward flexion of the thoracolumbar spine to 50 degrees, 165 degrees of combined motion, and no ankylosis.

2.  From July 8, 2008, to October 8, 2009, the severity, frequency, and duration of the Veteran's PTSD symptoms more closely approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks but did not more closely approximate occupational and social impairment with reduced reliability and productivity. 

3.  From October 9, 2009, to April 12, 2011, the severity, frequency, and duration of the Veteran's symptoms more closely approximated occupational and social impairment with deficiencies in most areas but did not more closely approximate total occupational and social impairment.

4.  From April 13, 2011, to the present, the severity, frequency, and duration of the Veteran's PTSD symptoms more closely approximated occupational and social impairment with reduced reliability and productivity but did not more closely approximate occupational and social impairment with deficiencies in most areas.

5. The Veteran last worked May 1, 2008, and the evidence of record demonstrates that as likely as not the Veteran's service-connected disabilities, consistent with his education and occupational experience, preclude him from securing or following a substantially gainful occupation from May 1, 2008, to the present.

CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 20 percent for lumbosacral strain with degenerative disc disease (low back disability) have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237.

2.  The criteria for a disability rating in excess of 30 percent prior to October 9, 2009, for posttraumatic stress disorder (PTSD) have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237.

3.  The criteria for a 70 percent rating from October 9, 2009, to April 12, 2011, for PTSD have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411.

4.  The criteria for a rating in excess of 50 percent from April 13, 2011, to the present for PTSD have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411.

5.  The criteria for an effective date of May 1, 2008, but no earlier, for TDIU have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1969 to July 1972 and from November 1990 to June 1991.  He served in both the Vietnam War and Operation Desert Shield/Desert Storm.  His awards and decorations include a Purple Heart and a Combat Infantryman Badge, among others.  Information in the file also shows the Veteran served in the Pennsylvania National Guard.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of March 2009 and September 2009 rating decisions rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In May 2017, the Veteran appeared at a hearing before a Veterans Law Judge, who is no longer with the Board.  Pursuant to 38 C.F.R. § 20.707, a January 2022 letter advised the Veteran of his right to a second Board hearing before another judge.  The Veteran advised the Board in February 2022 that he waived his right to a second Board hearing.  The Chairman has reassigned the matter to the undersigned Veterans Law Judge.  A transcript of the hearing before the prior Veterans Law Judge is in the record.

In September 2017, the Board issued a decision denying the Veteran's claim for a higher rating for his low back disability.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In a Decision dated in October 2018, the Court vacated and remanded the Board's decision for compliance with the instructions in the Joint Motion.  Pursuant to the Court Order, the Board remanded the low back disability claim to the RO in May 2020 for additional development.  As the requested development has been completed, no further action is necessary to comply with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

In May 2020, the Board issued a decision denying the Veteran's claims for higher ratings for PTSD.  The Veteran appealed that Board decision to the Court.  In a July 2021 order, the Court vacated and remanded the Board's decision for compliance with the instructions in the Joint Motion.  

1. Entitlement to a rating in excess of 20 percent for lumbosacral strain with degenerative disc disease low back disability 

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  See 38 C.F.R. § 4.3.

The evidentiary record does not reasonably raise the prospect that the Veteran's disabilities are not and cannot be adequately rated under the Rating Schedule.  

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.").

The Veteran is currently assigned a 20 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237 for his low back disability.   By way of history, a January 1973 rating decision granted service connection for a lumbosacral strain and assigned a noncompensable disability rating.  This claim stems from a July 8, 2008, claim.  In a September 2009 rating decision, the RO increased the low back disability rating to 20 percent effective the date the Veteran filed his claim.  The Veteran asserts that his low back disability warrants a higher rating.

Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula).  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243.  When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula).  Parenthetically, the Board notes the rating schedule for evaluating musculoskeletal disabilities was amended effective February 7, 2021. The amendment changed the definition of IVDS but did not change how IVDS spine disabilities are rated.  Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  

As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, Spinal Formula.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees.  Id., Note (2).  Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code.  Id., Note (1).  

Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996).  Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003).  

Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes.  38 C.F.R. § 4.71a, IVDS Formula.  Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  Id., Note (1).  A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks.  Higher ratings are available with incapacitating episodes of greater duration during a 12-month period.  In this case, there is no competent evidence of incapacitating episodes as defined by regulation of the duration required for a higher rating.  

In the September 2008 VA examination, the Veteran reported constant pain at least at a level of 6 or 7 out of a scale of 0 to 10, with flare-ups of pain at least once or twice per week, and an inability to remain seated for any length of time. He denied any severe episodes requiring physician-prescribed bed rest.  Upon examination, range of motion (ROM) testing showed forward flexion to 50 degrees and extension was to 10 degrees, both with pain noted.  Right lateral flexion was to 22 degrees and left lateral flexion was to 27 degrees, with pain noted on both sides. Rotation was to 45 degrees bilaterally with no pain.  No additional limitation in ROM was noted after repetitive use testing in any area.  Muscle strength, reflex, and sensory testing were normal.  The examiner noted that further limitations in ROM were possible during a flare-up, but the extent could not be determined as any limitation depended on the severity of pain and the activities the Veteran had to perform.

A second VA examination occurred in July 2011.  He reported constant low back pain prevents him from bending, climbing stairs, and walking more than a few blocks.  Upon examination, ROM testing showed flexion to 70 degrees and extension to 10 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 35 degrees.  Pain occurred during all ROM testing but no increase in symptoms after repetitive use testing.  Muscle strength testing was normal. Right ankle reflexes were absent. Sensory testing revealed slight hyperalgesia on the lateral side of the right foot.  X-ray testing showed marked degenerative changes of the lumbar spine at the L5-S1 compared to previous images, and the examiner diagnosed the Veteran with lumbar spondylosis.

The Veteran, in a November 2016 VA spine examination, reported continued lower back pain that radiates up his spine, with flare-ups occurring after too much activity, such as bending, twisting, or walking more than 100 yards.  Flare-ups consisted of pain as well as numbness and tingling down both legs.  ROM testing showed flexion to 75 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees and bilateral lateral rotation to 30 degrees.  The examiner noted pain during all ROM testing.  No additional loss of function or ROM occurred after three repetitions.  Without resorting to mere speculation, the examiner could not say whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over time or flare-ups.

There was no muscle atrophy, and muscle strength testing indicated normal strength except for hip flexion and left great toe extension, which showed active movement against some resistance.  Except for hypoactive deep tendon reflexes of the right ankle, the Veteran had normal reflexes.  Sensory testing showed decreased sensation to light touch throughout the lower right extremity.  The examiner noted moderate intermittent pain and numbness and mild paresthesias and/or dysesthesias bilaterally. There was no ankylosis of the thoracolumbar spine.  While the examiner diagnosed IVDS, the Veteran did not report incapacitating episodes (physician prescribed bedrest) during the preceding 12 months.

In the latest VA spine examination, November 2021, the Veteran reported moderate to severe flare-ups.  The back flare-ups last anywhere from minutes to hours and generally occur through movement.  He reported, however, that flareups can occur just by getting out of bed or sitting in a chair too long. The back flare-ups are alleviated by stretching out flat in his bed, use of lidocaine patches, and rest.  ROM testing showed forward flexion to 70 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees right lateral rotation to 30 degrees and left lateral rotation to 20 degrees.  Passive ROM testing yielded the same results.  The examiner noted pain during all ROM testing and pain with rest/non-movement.  The Veteran did not have pain in non-weightbearing situations.  Pain prevented the Veteran from exhibiting a full range of motion and a decreased ability to move his lumbar spine which is the definition of functional loss.  The Veteran performed repetitive use testing with no additional loss of function or ROM after three repetitions.  The examiner determined that pain, fatigability, weakness, lack of endurance, or incoordination did not significantly limit functional ability with repeated use over time.  During a flare-up, the VA examiner estimated the Veteran's range of motion remained unchanged from the examination ROM testing.  

All muscle strength testing demonstrated 4/5 (active movement against some resistance) with no muscle atrophy.  The Veteran demonstrated normal reflexes and sensation.  He also demonstrated radiculopathy signs of intermediate moderate pain and mild numbness bilaterally.  The Veteran did not have spine ankylosis.  While the Veteran had IVDS, no physician had prescribed bed rest in the prior year. Finally, the VA examiner reported a January 2018 lumbar spine MRI revealed retrolisthesis L5 on S1 with mild L5 vertebral body height loss of approximately 30%.  The Veteran also had multilevel discogenic disease, moderate at L5-S1.

In sum, range of motion testing was performed during VA examinations in September 2008, July 2011, November 2016, and November 2021 and showed at worst 50 degrees of flexion (September 2008) and 165 degrees of combined motion (November 2021).

The Board notes that potentially the Veteran might receive a higher rating for IVDS under Diagnostic Code 5243, which was noted upon examination in November 2016 and November 2021.  Rating a spine disability under the IVDS Formula requires evidence demonstrating, at a minimum, incapacitating episodes having a total duration of at least four weeks during the past 12 months.  38 C.F.R. § 4.71a.  Further, the Rating Criteria defines "incapacitating episodes" as periods of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, IVDS Formula, Note (1).  A review of the record reveals no evidence of incapacitating episodes of at least four weeks requiring prescribed bed rest and treatment by a physician.  Thus, a 40 percent rating is not warranted under Diagnostic Code 5243 for IVDS.  38 C.F.R. § 4.71a.

Finally, the Board finds that a separate rating for any additional neurological manifestation(s) is not warranted at any point since the effective date of the award of service connection.  A November 2016 rating decision awarded separate ratings for radiculopathy affecting each lower extremity, and he has not disagreed with the assigned effective dates or ratings for those disabilities.  The medical evidence demonstrates that, other than radiculopathy, the Veteran does not experience any separately rated neurological manifestations of his low back disability. Without any showing of any other neurological manifestations, additional separate ratings are not warranted.  

The Board has considered the Veteran's statements, to include his assertions that pain and other symptoms limit his activities, or the time needed to complete them, lifting objects greater than 15 pounds, or the need to change position after sitting too long.  As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain or his low back motion is limited; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis.  See Davidson v. Shinseki, 581 F.3d 1313 (2009).  The Veteran therefore cannot offer a lay opinion as to the specific level of disability of this disorder according to the appropriate diagnostic codes.  Thus, his lay assertions do not constitute evidence upon which a higher rating can be granted.  In any event, the Board ultimately assigns greater weight to the medical evidence of record, to include opinions rendered by trained medical professionals based on appropriate diagnostic testing after examination of the Veteran and consideration of the history of the disability including the Veteran's reports of symptoms. 

At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use.  When given the opportunity to describe functional limitation related to the disability, the Veteran's statements do not show the requisite limitation of motion necessary for a higher rating.  Notably, the November 2021 examiner determined that during flare-up or repetitive use over time functional ability would not be significantly limited by pain, weakness, fatigability, or incoordination.  Thus, the Board finds that the range of motion findings on examination depict the estimated range of motion during a flare-up or after repetitive use over time. 

Treatment records do not show greater limitation of motion than the examination findings.  Given the above, a higher rating is not warranted based on limitation of motion.  38 C.F.R. § 4.71a, Spinal Formula.  The Board concludes that the Veteran's low back disability does not meet or more nearly approximates the criteria for a higher rating during the period on appeal.  Accordingly, a rating higher than 20 percent for the Veteran's low back disability is not warranted. 38 C.F.R. §§ 4.3, 4.7, 4.71a.

2. Entitlement to a disability rating in excess of 30 percent prior to October 9, 2009 for posttraumatic stress disorder (PTSD) 

3. Entitlement to a rating in excess of 50 percent since October 2009 for PTSD

Since service connection for PTSD became effective on July 8, 2008, the Veteran has received a staged rating for PTSD.  Fenderson; Hart, supra.  He received a 30 percent rating from July 8, 2008, to October 9, 2009.  From October 9, 2009, to the present, PTSD is rated at 50 percent.  At all relevant times, the Veteran asserts PTSD should receive a higher rating.  The Board will discuss these two issues together as they involve the same disabilities, facts, and analysis.  

The Veteran's PTSD is evaluated under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders.  38 C.F.R. § 4.130.

A 30 percent rating is warranted 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, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events.  Id.

A 50 percent rating is warranted 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 such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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; and the inability to establish and maintain effective relationships.  Id.

A maximum 100 percent rating is warranted when 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 and place; memory loss for names of close relatives, own occupation, or own name.  Id.

The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list.  Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).

The record includes Global Assessment of Functioning (GAF) scores that clinicians have assigned.  The GAF was a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995).    

Clinicians dealing with mental health issues currently use the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).  Given the procedural posture of this appeal, the DSM-5 applies.  See 80 Fed. Reg. 14308 (Mar. 19, 2015) (DSM-5 applies to claims received by VA or pending before the agency of original jurisdiction on or after August 4, 2014).

The United States Court of Appeals for Veterans Claims (Court) noted that the DSM-5 eliminated GAF scores because of their conceptual lack of clarity and questionable psychometrics in routine practice, and further stated that an adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness.  The Court explained symptoms should be the primary focus when assigning a rating for a psychiatric disorder and clarified that the use of numerical GAF scores as a shortcut for gauging psychiatric impairment would be error.  Further noted was that the adequacy of medical examinations has never depended upon the use or inclusion of GAF scores.  Golden v. Shulkin, 29 Vet. App. 221, 224-26 (2018).  Accordingly, the Board has not considered any GAF score in its analysis.  

For the period before October 9, 2009, the RO awarded service connection for PTSD in March 2009 and assigned an initial 30 percent disability rating effective July 8, 2008, the date he filed the service connection claim.

The Veteran filed for Social Security Administration benefits the same month he filed his claim for service connection for PTSD.  In his application, the Veteran reported he last worked in an auto body shop.  His employer let him go because he had very little communication with other employees after he injured his back.  Approximately 75 percent of the time he disassembled, repaired, and reassembled body parts of cars and trucks involved in a crash. The remaining 25 percent of his time involved supervising another worker.  The Veteran also expressed fears about his loss of income and feeling inadequate because he could not work anymore due to physical injuries.  He also stated he had a low tolerance for stress but fair ability to changes in routine.  

The Veteran underwent a VA mental disorders examination in October 2008.  Upon interview and examination, the Veteran described symptoms of depression, anxiety, irritability, sleep disturbances, and some panic symptoms.  He had suicide related thoughts only in the distant past.  He further reported no psychiatric treatment or medication at the time.  He described his symptoms as "stable" and expressed a positive understanding of how to get help if needed.  He reported a past history of interpersonal problems.  Currently, however, he had a strong marriage of 14 years and felt well-connected with friends in his church which he can call upon for help.  He also felt he can make friends and overall, he had a good support system.  The Veteran stated he had an excellent work history.  He always had been a hard worker and very industrious person.  He gets along with people.  Now, however, he finds it difficult not to work and stressful both financially and feeling to some extent inadequate because he cannot work.  He tries to stay busy but his physical disabilities limit this.  He enjoys travelling to New York to see his children and tries to keep in touch with people by phone.  He stated he probably watches too much TV.  The VA examiner stated overall the Veteran is holding his own but struggling with medical issues and financial worries.  

He thinks about Vietnam daily which are distressing to him on a personal level.  He gets overwhelmed, anxious, and easily irritable.  He has disturbing dreams about ambush which caused him to jump out of bed and react violently.  On one occasion he tried to strangle his wife in the context of a dream. (He did not say when this occurred).  He has sleep problems including awakening to any noise.  He feels irritable but does not act out. The Veteran reported he will at times flip out for no reason.  He cannot have anyone approach him from behind and is hypervigilant and anxiously apprehensive in crowds.  

The VA examiner determined the Veteran had fair concentration.  The examiner did not find any clear attachment or estrangement issues.  Although he has friends, the Veteran admits he keeps people at bay.  He has a blunted ability to enjoy things and avoidance symptoms which manifests as not talking or thinking about the war unless it is with another Veteran.  The examiner stated the avoidance symptoms are not marked. 

Objectively, the examiner noted that the Veteran in no acute distress, generally had a broad ranged but slightly restricted affect, and alert and oriented throughout the interview.  He became tearful once talking about guilt surviving his Vietnam deployment when others did not.   The Veteran did not have any obsessions, compulsions, delusions, hallucinations, or evidence of any major concentration or memory, judgment, or insight impairments. The Veteran did not have suicidal or homicidal thinking.  Based on the in-person evaluation, the examiner diagnosed PTSD. The Veteran did not meet the criteria for major depressive disorder even though the Veteran described feeling depressed.   The Veteran did not have any panic attacks or generalized anxiety issues.  Any panic symptoms seem to be in the context of PTSD.  

During an August 2009 VA Gulf War examination, the Veteran had a history of depression, substance abuse, and anxiety. The Veteran did not have a history of interpersonal relationship difficulties, panic attacks, memory problems, loss of control/violence potential, homicidal symptoms, confusion, sleep impairment, suicidal symptoms, or any other psychiatric symptoms.  On examination, he had a normal affect, mood, and judgment.   He had appropriate non- obsessive behavior without evidence of hallucinations or delusions. The Veteran was of average intelligence and had normal comprehension of commands.

The Board finds that from the effective date of service connection to October 8, 2009, the Veteran's PTSD symptoms and resulting impairment do not meet, or more nearly approximate, the level of impairment contemplated in the next higher, 50 percent rating.  Such a rating contemplates occupational and social impairment with reduced reliability and productivity. 38 C.F.R. § 4.130.  The medical and lay evidence show that his PTSD has resulted in depression, anxiety, anger or irritability, and chronic sleep impairment with disturbing dreams and easily awakening.  All of these symptoms are contemplated in the currently assigned 30 percent rating. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. Thus, the Board finds the evidence is against a finding that the Veteran's disability warrants more than the 30 percent evaluation that is currently assigned.

During this appeal, the Veteran has demonstrated some ability to function with others.  The record indicates that he had been married 14 years and while the Board has no doubt that the Veteran's PTSD has placed stress on the marriage, he had a strong marriage.  He interacted with friends from church.  He also had a good work history.  The Veteran stated his last employer terminated him for not communicating with others.  Yet, that comment, made in his application for Social Security Administration (SSA) benefits, does not appear consistent with the overall picture of the SSA records and other evidence.  The Veteran applied for benefits because of his physical disabilities such as his back, not because of PTSD symptoms such as not communicating.  He worked in an auto body repair shop and spent most of his time working on repairs.  He only supervised one other person and that occupied 25 percent of his time.  This statement also contradicts other statements he made to SSA and the VA examiner.  He also stated always had been a hard worker, very industrious person, and gets along with people.  As noted, he is still able to interact with people from church and also enjoyed travelling to New York to see his children.  

The Joint Remand indicated a higher rating might be warranted because of the Veteran's fears about a lack of income and feeling inadequate because he could not work anymore.  The Board finds such fears and feelings do not indicate a more severe disability picture.  Instead, they represent the type of symptoms of someone who is functioning well and strongly motivated to continue working.  Unfortunately, the Veteran's physical disabilities prevent employment. The Board is also informed by the Veteran's own statement that his PTSD symptoms were stable, and the VA examiner determined the Veteran overall is holding his own but struggling with medical issues and financial worries.

During this period, there is no evidence of memory or concentration problems even of the type and severity described in the criteria for a 30 percent rating- namely, mild memory loss, such as forgetting names, directions, recent events.  The record certainly does not indicate severe memory or concentration problems described in the criteria for a 50 percent rating, i.e., difficulty in understanding complex commands or impairment of short- and long-term memory such as retention of only highly learned material.  While the Veteran stated he has some trouble learning, this appears to be related to a learning disability he has experienced since childhood.  The Veteran reported to the SSA that he did not handle stress well, but that statement is too general to find a severity approximating the criteria for 50 percent.  He also stated he has a fair ability to handle changes in routine which indicates he could still tolerate some stress.  

The Board finds the absence of other symptoms approximating a disability picture that warrants a 50 percent rating.  Notably, the Veteran does not experience anxiety, panic, or stress reactions that limited occupational or social functioning to the degree necessary for a higher rating as demonstrated by the Veteran's stable work history, and marital and family relationships. The Veteran did not report a loss of interest or participation in significant activities, given how he relied on members of his church community.  There were no problems of hypervigilance impairing functioning.  While the Veteran reported depression and anxiety, there is no evidence during the relevant period that the depression or anxiety impaired functioning such as engaging in activities, for example, at his church.  The Board finds the Veteran did not experience nervousness, inappropriate behavior, periods of violence, a sense of helplessness, a neglect of family, suicidal or homicidal ideation, delusions, or hallucinations, or that would warrant a higher rating. Although difficulty in establishing work relationships or adapting to occupational stress has been noted, there is no evidence demonstrating a severity warranting a higher rating that it caused reduced reliability or productivity.  His behaviors were within normal limits, and he did not have communication problems. There was no impairment of his judgment, abstract thinking, or thought process

The Board finds the absence of other symptoms approximating a disability picture that warrants a 50 percent rating. Thus, although the Veteran has PTSD, he was able to reasonably function both in an occupational setting for years physical disabilities prevented continued employment, and in personal relationships and activities since that time.  It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative.  The Board is required to assign an evaluation based upon all of the evidence that bears on occupational and social impairment. 38 C.F.R. § 4.126.  In short, as discussed in detail above, the Board finds the Veteran's psychiatric symptoms are fully contemplated by the 30 percent rating assigned and the disability picture does not approximate the level of severity or symptoms of the type, extent, and frequency warranting a 50 percent, 70 percent, or 100 percent rating. See 38 C.F.R. § 4.126.

In sum, as the evidence is against a finding that the severity of the Veteran's depressive disorder warrants a rating higher than 30 percent prior to prior to October 9, 2009, the claim for an increased rating for this period must be denied. 38 C.F.R. §§ 4.1, 4.3, 4.130.

-Starting October 9, 2009, the Veteran's PTSD symptoms increased in frequency and severity.  On October 9, 2009, the Veteran attended a mental health consultation at his local VA Medical Center (VAMC), reporting an increase in severity of his symptoms.  Specifically, the Veteran noted symptoms such as significant sleep impairment, increased irritability, depressed mood, difficulty concentrating, and anxiety. One of his biggest issues. the one that triggered him seeking treatment, is insomnia.  The Veteran stated when he goes to bed he stays awake for hours with thoughts.  He often has horrible nightmares that sometimes wake him though sometimes his wife wakes him, or he just remembers them in the morning. The Veteran sometimes does not sleep for more than an hour and is quite tired during the day.  He is functional but being so tired does make him irritable and moody.  

The Veteran stated he often gets anxious, especially around people and he feels like he is always on the edge.  He is always jumpy and startles easily.  When startled, he reacts with anger and stated several people almost got hurt.  The Veteran reported slamming his children against a wall if they came up behind him and startled him but did not indicate if this happened recently or occurred when he and they were younger.  Recently, the Veteran found himself depressed at times and in tears.  These episodes can be over nothing, and the Veteran cannot understand why it happens.   The Veteran also had a very severe problem with anger and his inability to control it.  People upset him in general and he will have fits of rage; it takes little to set him off.  This often occurs while driving.  He generally does not react physically now.  The Veteran stated he knows he is older and that he does not have the body of a strong young man, but his mind does not seem to realize this when he is in a rage, and he has no fear of anyone.  The Veteran attributes the success of his current 17- year marriage to his wife's patience and tolerance rather than any change in behavior by him.  He and his wife have not had any children together but have raised 5 children from their previously relationships.  The Veteran felt his children think he is a jerk because of the PTSD.

The Veteran also reported he now experienced visual hallucinations such as when he woke and thought the wall of his bedroom was a giant oven cooking Bullwinkle, the cartoon character.  He could smell the meat cooking and feel the heat.  The Board notes that during this period, Veteran had surgery and placed on a significantly higher dose of narcotics for post-op pain relief.  The clinician believed the narcotic pain medication as the likely cause of the hallucinations.  The VA clinician described the Veteran as pleasant and cooperative, alert, and calm, and well oriented. He had normal speech, judgment, insight, and memory and the Veteran denied suicidal/homicidal ideations or delusions. The Veteran had a euthymic mood but blunted affect. Based on interview, the clinician deemed the Veteran to be at low risk of imminent harm to himself or others.  

In November 2009, the Veteran reported depressant medication is helping.  The Veteran now slept better.  He still had thoughts before falling asleep but no longer felt like his mind is racing a million miles per hour.  Once he lays down in bed, it only takes him about 20 minutes to fall asleep where it used to take him hours.  He also no longer wakes hourly but now gets a couple hours sleep.  He can even fall back to sleep sometimes.  Nightmares do not occur quite as often as before.  The Veteran still awakens anxious, but not in an utter and complete panic.  He also is not as anxious around people and does not feel so edgy and jumpy.  His startle response is still present but not as profound.  He still feels depressed and did have crying spell at a Veterans Day presentation, but is having crying spells less often, about once a week.  Further, any crying spell does not seem as easily triggered or happening for no reason as much.   In addition, anger and frustration tolerance are better.  Although he still gets irritated, the Veteran feels he has a bit more control over it and does not get upset so easily.  The mental status examination did not reveal any abnormalities and he had no suicidal or homicidal ideations.  

In January 2010, the Veteran, still in recovery from his back surgery, thought he would be further along in recovery.  He is still tired and pretty much slept through Christmas, not even knowing what day it was.  He no longer experienced hallucinations like before and the pain is fairly controlled.  The Veteran stated mood and irritability remain fairly controlled as well, about 75-80% to symptom-free status.  The mental status examination did not reveal any abnormalities and he had no suicidal or homicidal ideations

In April 2010, the Veteran expressed more depression problems mostly from the pain medication.  The death of a sibling also increased symptoms.  For a while, he was depressed five days out of the week after the sibling's death, but his wife observed the Veteran is now depressed two days per week.  His daughter is expecting, and the Veteran looked forward to the baby.  The mental status examination did not reveal any abnormalities and he had no suicidal or homicidal ideations

In May 2010, the Veteran stated a close friend died the night before and her husband died the previous month.   Other than this news, the Veteran believed he is doing okay.  Ho longer gets depression on a regular basis, stating only occasionally he gets down.  This tends to happen when he is alone, so he has been surrounding himself with people and keeping busy which seems to help immensely.  He has been more upbeat lately and feels his medication is working well.  The mental status examination did not reveal any abnormalities and he had no suicidal or homicidal ideations

In July 2010, the Veteran reported he had "one of those months" and did not feel very positive.  An outside provider started him with physical therapy and weaning him off his narcotics, but he began having excruciating pain, as bad as when he first injured himself.   He felt down, sad, and had daily crying spells due to his physical frustrations and feeling like he is the "only one" as his parents and siblings are deceased.  The Veteran reported poor sleep although his appetite remained stable.  The mental status examination did not reveal any abnormalities and he had no suicidal or homicidal ideations

In August 2010, the Veteran did not want his medication changed but he was not doing well.  The Veteran had continued pain in his upper and lower back and his surgeon told him that his back will not get any better than it is now.  He also expressed frustration his VA claims were denied.  Other reported symptoms included problems with steady sleep, increased irritability, and interpersonal conflict.  The Veteran's wife stated he breaks down in tears at least daily, often in the morning, and does not settle down before she leaves for work which worries her.  On his very bad days, she sometimes fears leaving him alone and must call his close friend, a fellow Vietnam War veteran, to come over to spend time with him so she can feel comfortable going to work that day.  The Veteran was not currently suicidal and had no plan or access to weapons.  Nevertheless, he often feels like he and those around him would be better off if he were dead.  He does go out, but this also causes problems such as a verbal argument with his wife's sister.  His wife had to intervene before the Veteran might have hit her.  The Veteran gets very agitated in these instances, and he cannot back down.  He is always down and sad, feeling low with poor motivation and interest.  The Veteran finds it difficult to get excited for anything, and even more difficult to do anything without pain.  

In his mental status examination, the Veteran had a depressed mood and blunted affect.  Except as noted above, he did not have suicidal or homicidal ideations nor delusions. Based on interview pt deemed low risk of imminent harm to self or others.   

In September 2010, the Veteran reported feeling increasingly down, low, and irritable.  He denied any suicidal ideation, plan.  The Veteran's physical health issues had a significant impact on his mood now, especially stomach distress and pain.   The Veteran felt his opioid pain medication worsened his depression.  

Around this time, the Veteran underwent a second surgery on his back because he had to undergo emergency surgery to remove a large abscess(infection) and the hardware close to his spine.  Thus, in November 2010, his mental health clinician noted the Veteran appearing to be in much pain with an extremely slow gait.  The Veteran also appeared quite medicated and somnolent during interview, appearing to fall asleep on and off.  The Veteran's wife reported at times he will seem to be hallucinating, telling her to get certain items to they can "make a bomb to kill the Nazis."  She stated this may go on for hours before he seems to come around.  The clinician noted the Veteran's medications and after taking a careful history, the hallucinations seem worst in the morning and at night when medication dosing coincided.   She also stated that he is having more flashbacks and nightmares than at any time since she first met him- the symptoms seemed to be triggered by his pain.  The narcotic pain medication sedating him may also be triggering him and prevented him from being able to ground himself to reality.  The Veteran's wife states he is often unaware of where he is, who she is, and once unaware of who he was.  The Veteran was also more depressed, unmotivated, and irritable and snappy.  The Veteran denied any suicidal ideations or homicidal ideations.  Based on interview The clinician deemed the Veteran a low risk of imminent harm to himself or others.

The following month, December 2011, the Veteran still appeared somnolent but not as bad as before and he could follow the conversation the whole time.  He still had hallucinations from the morphine, but they are not as severe; he could also recognize them as such.  The Veteran no longer had bouts of confusion where he forgets where he is or who his wife is.  The Veteran remained down and irritable and flashbacks and nightmares had not improved.  Nevertheless, he had just started a higher dose of depressant medication, and it is too soon to see a difference. The Veteran had no suicidal or homicidal ideations and again deemed to be at a low risk of imminent harm to himself or others

Later that same month, the Veteran felt a little better and more alert.  The Veteran had no memory of most of what has happened since his most recent surgery.  He has bits and pieces of memories since the surgery, but he is only able to put together a full picture of what occurred based on what his wife and friend have told him.  He felt the pain medication was "killing me" so he stopped some of it.  The Veteran now felt much more lucid though pain is still a problem at times.  In addition, he is finally getting around a little better and is cooperating with physical therapy.  He remained angry at his physical state and that it took so long to find the infection.  However, an increase in sertraline has been helpful and he is more upbeat and no longer deeply depressed.  The Veteran is now hopeful and positive about the future.  He still feels down and anxious at times, but feels his mood is improving and he has not hit a plateau since the last change in medication.  He also felt that his mood will improve as he starts to make gains with his mobility.  

In January 2011, the Veteran's wife reported the Veteran is snappy lately because he is not able to do what he wants because of the back.  The continued pain, requiring pain medication, numbness, and restrictions on his activity, are worsening his PTSD symptoms.  As a result, he felt more down, anxious, overwhelmed, and crying spells.  The Veteran felt frustrated and become more hopeless though he did not have any current self-harming thoughts.  His sleep remained poor although his wife stated he is thrashing about a bit less.  The Veteran was more irritable and short-tempered; little things seem to set off his anger, causing him to snap at his wife more.  He goes out with his wife to church group a couple times monthly but that is the limit of his socialization as he prefers to isolate himself.  The Veteran states he does not have confusions, delusions, and hallucinations anymore.  The Veteran felt his increased symptoms resulted from his physical health and wanted to address the physical health problems with his primary care provider before increasing antidepressant medication.  The mental status examination did not reveal any abnormalities and he had no suicidal or homicidal ideations.

In March 2011, the Veteran remained more depressed lately with random crying spells which Veteran attributed to pain medicine. He even wakes up crying.  He felt high narcotic doses had a negative effect on moo and caused his crying spells. The Veteran noted the antidepressant medication is helping some and that he would not be able to deal with his current situation without it.  

Based upon the foregoing evidence, the Board finds the Veteran entitled to a 70 percent rating, but no higher, from October 9, 2009, to April 13, 2011. The Veteran's PTSD symptoms, however, do not warrant a 100 percent rating for this period.  The Veteran's back surgeries and postoperative care, especially the narcotic pain medication exacerbated PTSD symptoms such as his depression resulting in frequent, if not daily crying spells.  During this period, he had increased anger, irritability, difficulty in adapting to the stressful circumstances surrounding his surgeries and postoperative care, and it affected his interpersonal relationships.  For example, his wife occasionally had to arrange for a friend to stay with the Veteran while she worked.   Thus, the disability picture approximates the near-continuous depression mentioned in the 70 percent criteria.  

A 100 percent rating, however, is not warranted.  A 70 percent rating requires a severity of symptoms that rise to a level that inhibits or prevents everyday occupational and social functioning when the symptoms are near continuous (such as near continuous depression or panic attacks more than once a week), interfere with communication, or present the possibility of harm to the Veteran or others (suicidal ideation or impaired impulse control).  A 100 percent rating requires symptoms presenting a higher level of severity such as delusions or gross thought impairment. These are symptoms that are not only near continuous but also result in complete or near complete inability to function in everyday life or interact with others, i.e., interpersonal reactions and communications.  The evidence does not show this type of severity.  The Board acknowledges that in this period he experienced hallucinations, and disorientation to time and place, or memory impairment severe enough that he cannot remember the names of close relatives, or his own name. The medical evidence, including the Veteran's and the wife's reports, establishes the hallucinations and disorientation occurred to the narcotics prescribed to alleviate his postoperative pain, not because of his PTSD symptoms. 

There is no indication he cannot perform activities of daily living. In the Board's view, the level of severity of aggressive behavior exhibited by the Veteran during this time is already incorporated in the 70 percent rating. The 100 percent rating requires aggression or violence towards others requiring a frequency of persistent danger of hurting himself or others. While he has expressed anger towards others, he has not engaged in behavior that indicates he is a persistent danger to those people or himself.

Although the record reflects a history of suicidal thoughts as noted in the records, there is no history of plan or intent, and his caregivers deemed him at low risk of harming himself.  In most visits, he denied suicidal ideation.  To the extent that he did express such thoughts, he stated that it would be better from himself and others if he was dead.  The Board finds these reports of suicidal ideation as passive suicidal ideation.  Both passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death.  Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017).  As noted, when evaluating psychiatric disabilities, the Board considers the frequency, severity, and duration of suicidal ideations and the impact on the Veteran's life, rather than limiting consideration to the intention to act.  Again, his caregivers and VA examiners have determined that he has no plans and have not resulted in any overt acts.  As noted, risk of harm to himself or others is low.  Importantly, they have not found this symptom has inhibited his ability to function.  The evidence does not show the Veteran's suicidal thoughts or ideation affected his functioning; that is, interfering with activities of daily living, routine activities, etc.  In sum, while the Veteran's symptoms include occasional passive suicidal thoughts, this symptom has not affected his ability to function independently or created a deficiency in most areas of the Veteran's life.

Starting on April 13, 2011, the Veteran's condition significantly improved. At that time, the Veteran reported that he felt better, and friends told him he looked better.  He reported functioning a bit better with his mood, having fewer crying spells, and no longer wakes crying.  The Veteran still felt his mood would be better if he were on less narcotic pain medication.  He reported he has been a bit more upbeat and positive about the future lately since he has the "ball rolling" in the right direction with several of his stressors.

In June 2011, the Veteran testified at a hearing before a decision review officer (DRO).  At that time, he testified to nightmares with 3- 4 hours total sleep.  He also testified to memory problems and needs to keep reminders for appointments.  He engages in hobbies such as model building to keep himself distracted and avoids the news, war movies, or conversations with others about his combat experiences.  At least once a day he has an uncontrollable crying spell.  He will go to church, an occasional stock car race, and early breakfast with no crowds at a restaurant.  He experiences anxiety in crowd situations.  

In a July 2011 VA examination, the examiner noted that the Veteran demonstrated an increase in symptom severity since the previous examination in 2008, due to reported symptoms of depressed mood, irritability, sleep impairment, disturbances of motivation, mild memory loss, difficulty establishing and maintaining relationships, panic attacks 2 to 3 times per week, and suicidal thoughts without any plan or intent. The VA examiner described symptoms of pessimism, guilt feelings, punishment feelings, agitation, loss of interest, loss of energy, irritability, and tiredness or fatigue as severe.  He had moderate symptoms of sadness, past failures, loss of pleasure, self- dislike and self- criticalness, crying, indecisiveness, worthlessness, changes in sleeping patterns and appetite, and concentration difficulty.  He had mild memory impairment and mild suicidal thoughts which consisted of making it look like an accident.  The Veteran also had a supportive family relationship although he experienced more irritability and frustration with his family.  

The Veteran had normal attention, variable concentration, an agitated mood, full affect, clear and coherent speech, unremarkable thought processes and content, normal and judgment and insight.  He had fair impulse control.   Socially, the Veteran reported that he remained home all day and did not socialize or engage in any recreational activities.  Occupationally, in contrast with the previous examination, the Veteran reported difficulties in his work history due to poor attitude, irritability, and peer/supervisor conflict.  Yet, he also reported his employer let him go because of the physical limitations imposed by his back injury.  

The Veteran reported later in July 2011 he was confused and frustrated by his PTSD exam because the questions asked were overall broad and general and did not allow him to give enough information about his case.  He and his wife had significant financial stress because her employer had reduced her hours although her job is secure due to seniority.  The Veteran felt his antidepressant medication is still somewhat helpful for his mood and now has crying spells a couple times weekly.  

The Veteran reported in August 2011 that he and his wife travelled north a couple times over the summer, once to spend four days with his daughters and grandchildren and once to attend her family reunion.  The Veteran noted his mood seemed to be more upbeat when in his hometown and he really was able to enjoy time with family.  He stated he is fairly calm lately and crying spells are controlled. 

The Veteran felt better but irritable in October 2011.  He finally convinced his medical providers to reduce his narcotic pain medication which he is happy about.  The reduction, however, has made him more irritable.  Nevertheless, the Veteran stated the irritability is manageable; he is trying to just take a deep breath or a walk if he finds himself too irritated.  At that time, the Veteran and his wife also cared for the two young children of his stepdaughter.  He finds having two toddlers at home stressful both physically and mentally but also fulfilling.  The Veteran he is managing well felt his medications are working.

In November 2011 he felt better physically, and his medical providers continued to reduce his pain medications without any increase in back pain.  The medication changes made him more irritable, and he had trouble falling asleep and staying asleep with these changes.  The Veteran also worried that his wife's company will shut down completely soon and that they will not be able to make ends meet.  Nevertheless, he is trying to be optimistic now.  He is very stressed but not severely depressed.  The Veteran did not have any crying spells or self -harming thoughts.

As the tapering of pain medication continued in December 2011, the Veteran reported not sleeping well. He wakes up very restless and cannot get back to sleep but is otherwise okay.  Some of his other current stressors, such as his wife's work situation, have been reduced or improved.  

In February 2012, the Veteran's pain medication had been reduced even further.  When this happens, the Veteran will awaken at 4 am with sweats and other withdrawal symptoms.  The Veteran is okay with this, however, because he realizes that it is the only way he will get off the medication.  He is tired during the day and sometimes cranky.  His mood is more positive with no crying spells or self -harming thoughts.  

The Veteran reported continued sleep problems due to reduced pain medication in April 2012.  He has had an increase in dreaming/nightmares as well as waking in the night agitated and sweating.  The Veteran also had continued stress due to his wife's employer continued financial problems.  Further, he learned his granddaughter had just determined to be extremely disabled.  The Veteran stated the antidepressant medication seems to be helping him to deal with this and he does not want to make a change.

By June 2012, the Veteran had been entirely tapered off narcotics without back pain although he continues to be fatigued.  The other doctors told him the lack of energy may last for up to six months after stopping the narcotic, so he is hopeful of improvement in the future.  He had an increase in dreaming lately but they have been "weird and funny" dreams, so he does not mind them. The Veteran reported trying to help his daughter who unfortunately was in an abusive situation.  Medication seems to be helping him to deal with this.   

In August 2012, the Veteran's mood remained upbeat even though his family situation also remained stressful, but his daughter did finally have enough of the domestic abuse and moved.  In addition, her three children are staying with a cousin. The Veteran noted these grandchildren are now finally acting happy go-lucky because they are not so terrified and that makes him happy.  On the other hand, his other daughter's husband left her.  He realized he cannot fix her situation and must let her deal with the situation- the Veteran getting into a fight with the man is not going to change the fact that he left her.  He is not having nightmares, only bizarre and funny dreams.  The mental status examination did not reveal any abnormalities and he had no suicidal or homicidal ideations.  He remained at low risk for self- harm or harm to others.  

The Veteran reported in October 2012 that his mood remained upbeat for the most part though he does have a lot of stress with the personal lives of both his children and his wife's daughter.  In addition, his wife is working less than full-time hours at her job, but they are still making ends meet for now.

In December 2012, the Veteran reported an upbeat mood for the most part though he felt a bit more down due to time of year.  He is also more stressed due to continued family struggles.  The Veteran felt his medications helped him maintain mood during this stressful time.  The mental status examination did not reveal any abnormalities and he had no suicidal or homicidal ideations.  He remained at low risk for self- harm or harm to others.  

In March 2013, the Veteran reported an even more upbeat mood is more upbeat since he travelled to New York for the holidays.  He had a heart- to- heart conversation with his kids and a nice visit with his grandchildren who are the main bright spot in his life.  The Veteran is eating and sleeping well.  He can get frustrated and worked up when reading or watching news about politics but feels he must remain informed.  The next month, the Veteran again visited his children in New York and their situations deteriorated.  He has support from his wife and has been asking for prayers at his church which is comforting to him.

The Veteran told his mental health clinician in June 2013 "despite everything that has been going on, I realize that my life could indeed be a lot worse."  He has had some positive contact with his younger daughter and son as well as his grandchildren.  He planned on travelling to New York to help his older daughter look for an apartment and to do some activities with his grandchildren which he greatly enjoys.  The Veteran still had "weird" dreams lately but not about combat and he often does not remember them.  He is not overly bothered at present, and his mood is upbeat.

In August 2013, the Veteran reported his unemployability was approved and retroactive to 2008.  The Veteran decided to use the money to buy a house outright in his old hometown in New York.  He is happy about this since he will only need to keep up with his tax bill and utilities which should be amply covered by his monthly check.  He also used the money to settle a loan between his daughters.   Finally, as his wife keeps getting her hours cut and did not work any hours the previous week, the move to New York would only be positive since he would be close to family and old friends. The Veteran is presently upbeat and positive.  The Veteran has already sought out a church to attend which he feels is a need to keep him in a good frame of mind and to keep his anger controlled.  

After moving from Pennsylvania to New York, the Veteran continued his care at VAMC.  A March 2015 nutrition note reported the Veteran does a lot of walking.  He now lives a mile from town and walks to it.  He also worked around the house. 

At his May 2017 hearing before the Board, the Veteran testified to anger problems resulting from seeing friends killed in Vietnam.  He has bursts of anger and little things will cause the anger. If something frustrates the Veteran, he loses hid temper.  He has broken or thrown things. He has screamed at his wife, friends, and grandchildren for not reason.  He tries to not have too many friends and stays to himself.  He also reported sleep problems and nightmares.  

In October 2017, the Veteran noticed that his mood has been calmer over the past month.  He experiences some weird dreams that wake up but can go back to sleep. Around this time, however, he had a cerebral vascular accident (commonly known as a stroke).

In November 2017, the Veteran sought out mental health treatment because he struggled with irritability and nightmares.  The Veteran also reported violent thoughts against a doctor while hospitalized for the stroke.  At the time he felt vulnerable and helpless following stroke and had not been sleeping well in the hospital.  The violent thoughts occurred while impatiently waiting for the doctor so he could be discharged.

The mental health care provider noted the Veteran did not have a history of violent thoughts or behaviors. The Veteran's anger response could be attributed to stress of waiting to be discharged from the hospital after stroke.  He denied anxiety, symptoms of psychosis, or depressed mood.  The provider diagnosed an adjustment reaction.  He further concluded the Veteran was not a current risk of lethality due to absence of ideation, plan, or intention.  Furthermore, the Veteran did not have a history serious self- harm and could not be considered particularly impulsive. The Veteran also did not express feeling a lack of purpose, trapped with desperate sense of no way out, withdrawal from friends or social circles, increased anxiety or agitation, dramatic changes in mood, engaging in risky activities or acting reckless, or uncontrolled anger.  He denied recent stressful interpersonal conflicts, recent stressful legal events, unbearable pain, recent losses, or extreme humiliation or demoralization.  The Veteran had protective factors and deterrents to suicide including strong connections to family and loved ones, sense of responsibility to family, nurturing caretaking role, interpersonal connections, sense of purpose and meaning in life, life satisfaction, resilience, persistence, reality testing ability, negative attitude towards suicide, positive coping skills, community support, spiritual faith, cultural and religious beliefs that discourage suicide and support self- preservation.  Finally, the Veteran demonstrated basic skills in problem solving, conflict resolution, ability to conceive of alternate solutions, and nonviolent handling of disputes.  The Board thus reads the clinician as concluding the Veteran had an acute reaction to the stroke and hospital stay, not a symptom resulting from any ongoing mental health condition such as PTSD.  

In February 2018, the mental health clinician noted the Veteran and his wife are very close to their children and thirteen grandchildren.  The Veteran did not seek any psychiatric care after moving from Pennsylvania until the incident of intense feelings of anger and rage while hospitalized for the stroke.  At the February 2018 VAMC mental health visit, the Veteran expressed an occasional low mood which he states is "just like everyone else".  The Veteran engages in some isolation behavior and avoids big crowds.  Nevertheless, during the holidays he steps outside for about 20 minutes and can then come back inside and rejoin the family.  He denied anhedonia and very much enjoys his time with his grandchildren.  He described fair sleep and good appetite.  He denied any suicidal or homicidal ideation or thoughts of self-harm or others.  On the contrary, he is future oriented and states he "wants to be around a long time for his grandchildren."

Specifically, as to PTSD, nightmares and flashbacks occasionally occur but are more manageable now.  In a similar manner, anger and explosiveness had been a problem, but are better controlled now.  The Veteran had some hypervigilance, startle responses, and sensitivity to loud noises.  The mental status examination showed the Veteran pleasant and cooperative on interview.  He had normal speech and no psychomotor abnormalities. Both his thought process and thought content were within normal limits.  He did not have suicidal or homicidal ideations, paranoia, delusions, ideas of reference, or perceptual disturbances. The Veteran was alert. oriented, and well-organized.  Judgment and insight appeared fair to good.

In May 2018, the clinician diagnosed PTSD and major depressive disorder NOS (MDD), The clinician described the depressive symptoms as mild in nature and noted the Veteran enjoys his time with his family. The Veteran had fair sleep with energy and motivation decreased at times. The Veteran denied isolation or anhedonia and adamantly denied any suicidal ideations or thoughts of self-harm.  His family is a strong protective factor.  The Veteran had some anger and mood lability, impatience, and irritability.  However, he adamantly denied physically acting out.  Baseline hypervigilance, startle response, and sensitivity to loud noises remained.

The Veteran in October 2018 stated he did not want any regular daily medications and wanted to manage symptoms on his own.  He denies significant depressive symptoms but has been struggling with some stressors such as a problem with a daughter.  Sleep is not too bad.  He had occasional nightmares, but they are manageable.  The Veteran had relatively good energy and motivation.  He denied isolation, anhedonia or any suicidal or homicidal ideations, plan, or intent.  The PTSD symptoms such as nightmares and flashbacks are manageable and do not occur too frequently.  

The Veteran denied depressive symptoms in March 2019 doing fairly well, other than situational stressors.  He stated his mood "pretty good most the time."  He now has about 4-1/2 -5 hours sleep.  His energy, motivation, anger, irritability, and mood improved.  He feels that the sleep deprivation was the source of a lot of the fatigue and lack of energy as well as a role in his short temper and low tolerance to frustration. The Veteran denied any suicidal or homicidal ideations, plan, or intent to harm himself or others. 

The Veteran reported similar symptoms and level of severity in September 2019.  A stressor involving his future son in law had been favorably resolved.  His mood was pretty good and previous fatigue, lack if energy, anger, and tolerance to frustration had improved with increased sleep.  He denied any suicidal or homicidal ideations, plan, or intent to harm himself or others.

The Veteran underwent a VA examination in March 2020.  Upon examination and interview, the Veteran continued to report depressed mood, sleep disturbances, anger and irritability, detachment from others, and lack of interest.  He reported flashbacks, hyperstartle response, nightmares, hypervigilance, avoidance, and anger outbursts, and detachment from others.  He had sleep disturbance and concentration problems.  He endorsed depressive symptoms of sad moods and crying spells. When angered, he becomes loud and abrasive.   He reported a fair relationship with his family due to anger outbursts and detachment from others.  For similar reasons, he denied an active social life and prefers to be alone.  He used to enjoy hunting and working on classic cars, but he reported a lack of interest.  The Board notes parenthetically that he has reported elsewhere that physical disabilities such as his back and shoulder, not a lack of interest, prevented him from hunting and working on classic cars.  The Veteran also reported approximately two years previously he punched someone which contradicts treatment notes such as the November 2017 note indicating the Veteran did not have a history of violence or the subsequent notes stating the Veteran did not have any suicidal or homicidal ideations, plan, or intent to harm himself or others.  

The examiner noted, however, the Veteran had normal motor behavior, appropriate eye contact, fluent and clear speech. a coherent and goal directed thought process.  The Veteran also had a full range and appropriate affect to speech and thought content.  He was oriented to all spheres, with intact attention, concentration, and memory skills. The examiner concluded that the Veteran's PTSD manifested occupational and social impairment with occasional decrease in work efficiency and intermediate periods of inability to perform occupational tasks, due to symptoms such as depressed mood, anxiety, suspiciousness, weekly panic attacks, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, a difficulty in establishing and maintaining effective work and social relationships, and a difficulty in adapting to stressful circumstances.

The same month as the VA examination, March 2020, the Veteran's mental health clinician noted the Veteran denied depressive symptoms and had a pretty good mood most of the time.  He enjoyed spending time with his family, had good sleep, and denied isolation or anhedonia.  He and his wife are planning renovations to their house, and he is looking forward to this.  They have very good neighbors with two young teenage sons who will help him.  However, he is looking forward to doing some of the renovations on his own.  Both he and his wife agree that his mood is been fairly even.  He has decreased anger and mood lability noting that he feels "pretty mellow" and does not get upset very often.  He denied any suicidal or homicidal ideations, plan, or intent to harm himself or others.

By August 2020, the Veteran denied any depressive symptoms and his mood remained pretty good most the time.  He still enjoys his time with his family and sleep remained fairly good.  He denied isolation or anhedonia and his energy and motivation remained improved with better sleep.  He has been working on the home renovations with the help of the neighbor's two sons and things of been going very well, other than slight delays in material deliveries.  He denied any suicidal or homicidal ideations, plan, or intent to harm himself or others.  The clinician noted the Veteran has very strong religious faith.  This faith and his family are strong protective factors.  He denied overt PTSD symptoms. Occasional nightmares and flashbacks occur, though he states these are manageable. The Veteran still had his baseline hypervigilance, startle response and sensitivity to loud noises.   

In December 2020, the Veteran denied depressive symptoms and his mood remained "pretty good most the time."  He continued to enjoy time with family. Sleep remained fairly good.  If he wakes up, it is to use the bathroom and he wakes up calmly and not with a startle response as he used to.  Energy and motivation improved, since his sleep is good.  He has not struggled with fatigue and lack of energy.  The renovations that he was working on with the two neighbor sons have gone well and they're almost finished.  He felt very happy and blessed that his family is all safe and healthy and looked forward to celebrating the holidays next year.  He is also looking forward to the wedding of his daughter in the next year, hopefully in the spring or summer.  Nightmares and flashbacks have significantly decreased.  He states that the past he would wake up with a significant startle response, distressed most falling out of bed. This has not happened and if he wakes up, he is able to get back to sleep.  Occasional nightmares occur, but he states the intensity and frequency is decreased and manageable.  He has the same Baseline hypervigilance, startle response and sensitivity loud noises.

In the last mental health treatment note in the records, April 2021 the Veteran and his wife agree that he has been doing quite well.  As he had been reporting for some time, his mood is "pretty good most the time". He had a very good Thanksgiving with about 8 or 9 family members with the same group over for Christmas.  The Veteran stated that the holiday season last year was very good and enjoyable.  Since his sleep improved and remained good, he has not struggled with fatigue and lack of energy.  Renovations are almost done on the house and the Veteran and his wife are looking forward to enjoying their home and property in the summer.  He and his wife both have fishing licenses and a canoe, so they also looked forward to doing some fishing this summer.  The Veteran denied any suicidal or homicidal ideations, plan, or intent to harm himself or others.  Again, his very strong religious faith, and his family are strong protective factors. Nightmares and flashbacks have significantly decreased.  He states that the past he would wake up with a significant startle response, distressed, and almost falling out of bed.  The occasional nightmares and flashbacks are manageable.  Some baseline hypervigilance, startle response and sensitivity loud noises remains. The Veteran had slight anxiety over current medical issues

Thus, as noted, starting in April 2011, the severity of the Veteran's PTSD symptoms improved significantly with the Veteran denying suicidal/homicidal ideation and delusions, and relatively normal memory, insight, judgment, attention, and alertness. His sleep disturbance also improved and significantly reduced his fatigue and anger.  The nightmares, symptoms and startle response have all decreased.  Further, it is quite apparent the Veteran has a good relationship with his family even when his children have their own problems which can cause the Veteran stress as a parent.  On the contrary, it appears the Veteran relies on his family especially his grandchildren as a source of support.  

Although the Veteran reports he has few social relationships and isolates himself, it appears this symptom is not as severe as the Veteran believes it is.  He still relies upon his church community and, as noted more recently, the Veteran has a good relationship with his neighbor as the neighbor's two sons helped him renovate the house he bought.  Besides taking an interest in the renovations, it appears the Veteran does as much as he can limited only by his physical abilities not his PTSD.  During this period, he also travelled, walked for exercise, and more recently, planned on fishing in the 2021 summer.  He also looked forward to a daughter's wedding. 

The Veteran's most recent examination also suggests difficulty in adapting to stressful circumstances and a history of a recent physical altercations.  As noted, however, that report is inconsistent with the medical treatment notes which consistently report that while the Veteran has continued anger and irritability, the symptom is not as severe as contemplated by a 70 percent or 100 percent rating. Even the Veteran has described his anger symptom as "manageable and displayed the judgement and ability to take a deep breath or walk away. 

Based on the foregoing, the Board finds the evidence is against a finding that the Veteran's disability warrants more than the 50 percent evaluation that is currently assigned from April 13, 2013, to the present.  In the Board's view, a 70 percent rating requires a severity of symptoms that rise to a level that inhibits or prevents everyday occupational and social functioning when the symptoms are near continuous (such as near continuous depression or panic attacks), interfere with communication, or present the possibility of harm to the Veteran or others (suicidal ideation or impaired impulse control).  A 100 percent rating requires symptoms presenting a higher level of severity such as delusions or gross thought impairment.  These are symptoms that results in not only near continuous symptomatology but also evidence of complete or near complete inability to function in everyday life or interact with others, i.e., interpersonal reactions and communications.  For the period from April 2013 to the present, the Veteran's disability picture does not rise to either level.  The evidence is negative for evidence that the Veteran demonstrated obsessional rituals which interfere with routine activities, abnormal speech, near-continuous panic or depression, an inability to establish and maintain effective relationships, spatial disorientation, or neglect of personal appearance and hygiene.  Taken as a whole, the evidence during this particular period, April 2011 to the present, is against a finding that a higher 70 percent rating is warranted

The Veteran has not reported nor is there evidence of symptoms is similar in severity, frequency, and duration to the listed symptoms in the schedular criteria for a 70 percent rating such as communication problems, an inability to take care of himself or at one point, his grandchildren, impaired impulse control, judgment or thinking, anger/irritability, or presents a threat to others to herself or others significant memory loss, or loss of concentration that inhibit or prevent work or tasks.  The Board finds the severity, frequency, and duration of the Veteran's symptoms, whether listed in the General Formula or unlisted, 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.   

The Board is sympathetic to the Veteran's lay statements that his PTSD is worse than currently evaluated during the periods on appeal, and those statements have been considered. The Veteran is competent to report symptoms he can observe through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the mental health personnel who have examined him during the current appeal, considered his statements, and rendered pertinent opinions in conjunction with the evaluations. The mental health findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings.

It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative. The Board is required to assign an evaluation based upon all of the evidence that bears on occupational and social impairment.  38 C.F.R. § 4.126.  The Board finds the Veteran's psychiatric symptoms since April 13, 2011, are fully contemplated by the assigned 50 percent rating and the disability picture does not approximate the level of severity warranting a 70 percent rating or higher.  See 38 C.F.R. § 4.126.  In sum, as the evidence is against a finding that the severity of the Veteran's depressive disorder warrants a rating higher than 50 percent for the period beginning April 13, 2011, the claim for an increased rating during this period must be denied. 38 C.F.R. §§ 4.1, 4.3, 4.130.

4. Entitlement to an effective date of May 1, 2008, but no earlier, TDIU.

As the Veteran's appeal involves claims for higher ratings for both his low back disability and PTSD, the record also reflects the Veteran had a claim for TDIU.  A claim for a total disability rating based on individual unemployability, whether expressly or reasonably raised by the record, is not a separate claim for benefits but is instead part of the adjudication of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447 (2009).

The Board notes in a May 2013 rating decision, the RO granted the Veteran TDIU with an effective date of October 23, 2008.  The May 2021 CAVC Order and Joint Motion for Remand directed the Board to discuss whether the Veteran should be awarded an effective date earlier than October 23, 2008.  After the Veteran filed his appeal but before the May 2021 Court Order, the RO awarded TDIU effective July 8, 2008, the date the Veteran filed both the PTSD claim and the increased rating claim for his low back disability.   

A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities.  38 C.F.R. § 4.16(a).  In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.   

The Veteran's claim for a higher PTSD rating is based upon the initial disability award upon granting service connection.  Governing law provides that the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year after separation from service, otherwise the date of receipt of claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i).  Thus, based upon the PTSD claim alone, the effective date for TDIU can be no earlier than July 8, 2009, the date the Veteran filed his claim for service connection for PTSD. 

However, on the same date, July 8, 2008, the Veteran also filed a separate independent claim for a higher rating for the low back disability.  This disability had already been service connected.  The effective date for an increased compensation award shall be the earliest date as of which it is ascertainable that an increase in disability occurred if the application is received within one year from such date.  38 U.S.C. § 5110.  That leaves the question of whether the record reflects evidence of unemployability in the one year period before July 8, 2008.

In his SSA application for unemployability he reported his back, shoulder, and other physical disabilities prevented him from working or from following a substantially gainful occupation. The record reveals that his last full-time employment ended on May 1, 2008.

The medical and lay evidence reveals that Veteran's service-connected physical disabilities such as his back and right shoulder disability alone prevented substantially gainful employment beginning May 1, 2008. This is based on a careful review of the relevant VA examinations, and the opinions contained therein, and the Veteran's reports of the impact of the psychiatric disability upon the Veteran's ability to work.  Based on the evidence that he worked until May 2008, 

 

the Board grants TDIU effective May 1, 2008.

 

 

L. M. BARNARD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Russell P. Veldenz, 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.