Citation Nr: 22018103 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-15 265 DATE: March 28, 2022 ORDER Entitlement to an evaluation in excess of 50 percent prior to December 17, 2019, and in excess of 70 percent thereafter, for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. Prior to December 17, 2019, the Veteran's PTSD was productive of occupational and social impairment with reduced reliability and productivity, but not occupational and social impairment with deficiencies in most areas. 2. Since December 17, 2019, the Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to December 17, 2019, the criteria for an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130, Diagnostic Code 9411. 2. Since December 17, 2019, the criteria for an evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to April 1971 and from July 1971 to January 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was scheduled in December 2021; however, the Veteran withdrew his hearing request. See December 2021 VA Form 21-4138 statement in support of claim. During the pendency of the appeal, in an April 2020 rating decision, the RO increased the evaluation for the Veteran's PTSD to 70 percent disabling effective December 17, 2019. Applicable law provides that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Law and Analysis The Veteran's representative challenges the adequacy of the March 2017 VA examination, which will be addressed below. See February 2022 appellate brief. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist with regard to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, 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, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). The Veteran's PTSD is currently assigned a 50 percent evaluation prior to December 17, 2019, and a 70 percent evaluation thereafter, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 50 percent evaluation is warranted when the psychiatric disorder results in reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted when the psychiatric disorder results in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when the psychiatric disorder results in 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. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126. In addition, the evaluation must be 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. Id. At the outset, the Board notes that the Veteran's VA medical records show that he has received treatment for PTSD on numerous occasions over the years. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Thus, while the Board considered all evidence of record, in its decision below, the Board will summarize the relevant evidence as appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Prior to December 17, 2019 In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an evaluation in excess of 50 percent for PTSD prior to December 17, 2019. During a VA psychiatric appointment in August 2014, the Veteran reported irritability and sleep problems. He also reported poor appetite and chronic pain. He stated that he gets up at night and checks the doors, windows and shower. The VA treatment provider noted that he was alert, calm, cooperative and dressed appropriately. His speech was normal, and his mood was described as euthymic. His affect was mood congruent. Thought process was linear, logical and goal oriented. There were no auditory or visual hallucinations. Insight and judgment were described as good. He was fully oriented to person, place, time and situation. There was no suicidal ideation reported. The examiner did note that he was "distractible" and had poor concentration. He was also forgetful daily, but his remote memory was intact. See August 2014 VA treatment record. Similarly, in November 2014, the Veteran reported irritability and angry outbursts but the episodes were less frequent. He reported poor appetite and waking up frequently during the night. He was alert, calm, cooperative and dressed appropriately. The mental status examination was within normal limits except for daily forgetfulness and poor attention and concentration. He was fully oriented and reported no auditory or visual hallucinations or suicidal ideation. See November 2014 VA treatment record. During this time period, the Veteran was afforded a VA PTSD examination in December 2015. The examiner noted that he continued to live with his third wife in a stable, supportive relationship. He had not worked since 2006 and was on disability. Symptoms at that time were described as depressed mood, anxiety, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. He was prompt for his appointment and was dressed casually, but normally. He appeared older than his stated age. He was noted to walk with a slow, shuffling gait with the aid of a walker. Word usage and vocabulary were noted to be significantly below his age group and educational attainment expectation. His speech was slow and flat. He was alert and oriented in all spheres. The remainder of his mental status was also within the lower range of normal limits. Normal reasoning, problem-solving and abstraction skills were noted over the course of the examination and interview. The Veteran's cognitive and psychomotor pace were slowed, possibly due to his opiate pain medications. He revealed obvious behavioral indicators of somatic pain. He did reveal some limits to his understanding of his issues. Mood and affect were anxious and depressed. There was no evidence of loose associations, blockages of thought, or any other indicators of major psychotic-level mental disorder. On questioning, he denied suicidal ideas, impulses, or intent. See December 2015 VA examination report. In June 2016, he reported poor sleep, irritability, depression, and chronic pain. He also reported low energy, anhedonia, memory problems, and difficulty concentrating. He denied any suicidal thoughts. Consistent with previous examinations, his recent memory was described as "forgetful daily" but remote memory was intact. He was described as distractible with brief concentration. Otherwise, the mental status examination was within normal limits. Speech was normal in rate and volume, and he was noted to be calm, cooperative and appropriately dressed. There were no auditory/visual hallucinations and his thought process and thought content were normal. He was alert and fully oriented to person, place, time and situation. See June 2016 VA treatment record. In February 2017, he reported flashbacks described as "seeing things, all kinds, shooting people." He endorsed chronic pain and breathing problems. He was on morphine for pain. He reported symptoms including hypervigilance, loss of energy, nightmares, insomnia, intrusive thoughts, memory problems, and difficulty concentrating. He denied suicidal thoughts. The mental status examination was consistent with prior examinations, i.e., within normal limits except for issues with recent memory, attention and concentration. See February 2017 VA treatment record. The Veteran submitted a Disability Benefits Questionnaire (DBQ) in February 2017 from L.B. (initials used to protect privacy), his VA mental health treatment coordinator. L.B. noted symptoms including hypervigilance, nightmares, intrusive traumatic memories, flashbacks, anger, anxiety, and exaggerated startle response. L.B. also noted that his chronic pain complicates the condition. See February 2017 DBQ. Another VA examination was performed in March 2017. The Veteran was still married and denied any significant marital problems. He has six children from prior relationships and maintains contact with some of them, but not all of them. He reported difficulty walking due to back problems. He reported he does not like to be around people and mostly sleeps and watches TV. He was last employed as a mechanic repairing machines in 2005 but left that job due to inhaling chemicals which made him ill. He stated that he is not currently employed due to his back problems and difficulty breathing. The Veteran also reported sleep problems and paranoid thoughts; he told the examiner that he wakes up every hour because he thinks someone is trying to break into the house. He also reported sleep issues due to chronic pain. The Veteran described mood swings, anger and intrusive memories. He stated that he thinks about his experiences in service on a daily basis and "I have visions of it." He also endorsed exaggerated startle response and hearing voices saying things like "GI, go home, this is not your war," and "black man, go home, it's not your war." He denied any suicidal/homicidal ideation. The March 2017 examiner noted that the Veteran's pants were dirty, and he was disheveled. He stated that he last washed them about three weeks ago. He was described as cooperative and demonstrated relaxed motor activity. Rapport was easily established. His speech was mumbled at times and the examiner had to ask him to repeat himself. Volume was at a normal rate and attention/concentration were intact. He maintained limited eye contact during the examination. Affect was flat/restricted, and mood was euthymic. He demonstrated average to above average intellectual functioning. Thought processes were linear and he did not display any perceptional issues or psychotic features during the examination. He did not report any current suicidal/homicidal thoughts. See March 2017 VA examination report. In August 2019, the Veteran continued to report angry outbursts, irritability and nightmares. However, he reported fair mood stability and fewer nightmares. His sleep was stable. He reported frustration with his PTSD rating. It was noted that he has multiple health issues and chronic pain. He denied any suicidal ideation. The mental status examination was consistent with prior examinations. He was described as alert, calm, cooperative and dressed appropriately. There were no auditory or visual hallucinations and his thought process was linear and goal directed. He was oriented in all spheres. Except for recent memory and attention/concentration deficits, the examination was within normal limits. See August 2019 VA treatment records. In October 2019, the Veteran reported ongoing financial problems and asked how he can get his benefits increased. The examiner noted that this is the same question he asks every visit. His wife noted that he gets very angry. He self-isolates and has chronic pain. Reported symptoms at that time included anger, irritability, depression, anxiety, insomnia, anhedonia, low energy, memory problems and difficulty concentrating. He denied any suicidal/homicidal ideation. His mood was described as angry and affect was mood-congruent. Otherwise, the mental status examination was within normal limits except for the ongoing recent memory and attention/concentration deficits discussed above. See October 2019 VA treatment record. The Board finds that the foregoing evidence demonstrates that the Veteran's PTSD symptoms more closely approximate the rating criteria for a 50 percent evaluation prior to December 17, 2019. The evidence of record does not show that he had suicidal ideation; obsessional rituals which interfered with routine activities; speech intermittently illogical, obscure, or irrelevant; spatial disorientation; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; or neglect of personal appearance and hygiene. The March 2017 examiner did note that his pants were dirty, and he had some hygiene issues; however, as set forth above, the VA treatment records show that he consistently maintained an appropriate appearance for his appointments. The Veteran's representative argues that the March 2017 examiner did not list auditory/visual hallucinations as a symptom despite the Veteran's reports of hearing voices and having "visions" related to his experiences in Vietnam. See February 2022 appellate brief. The Board acknowledges that persistent delusions or hallucinations is actually a symptom associated with a 100 percent rating. However, the VA treatment records do not reflect persistent delusions or hallucinations. As set forth above, the mental status examinations consistently indicate no audio-visual hallucinations. In addition, his report of having visions of his combat experiences in Vietnam appears to be describing flashbacks or intrusive memories rather than true visual hallucinations. The Board also acknowledges the February 2017 DBQ by L.B. However, L.B. acknowledges that the Veteran's chronic debilitating pain complicates his condition which is also reflected in the VA treatment records. Indeed, during the March 2017 VA examination, he stated that he is no longer employed because of his back problems and difficulty breathing, not his PTSD symptoms. He also had appropriate communication, thought processes, and behaviors during this time period. Thus, while the Veteran experienced anxiety and/or depression, the Board finds that the evidence of record shows that the severity of such symptoms is more appropriately described as a "disturbance of motivation and mood" under the criteria for a 50 percent evaluation. The severity did not rise to the level of compromising his ability to independently and appropriately function, as the 70 percent rating criteria contemplate. The Board also notes that the Veteran reported irritability with verbal aggression. However, his irritability with increased verbal aggression does not equate to having impaired impulse control, such as unprovoked irritability with periods of violence, as contemplated in the 70 percent evaluation criteria. Indeed, the Board notes that the lay and medical evidence do not demonstrate any violence or homicidal ideation during this time period. With respect to maintaining effective relationships, the Board notes that the Veteran had some difficulty establishing and maintaining effective work and social relationships. He reported self-isolating behavior. However, his marriage was described as stable and supportive, and he maintained relationships with at least some of his children and siblings. See December 2015, March 2017 VA examination reports. Thus, while there does appear to be social impairment, the Board finds that such evidence does not show that the Veteran had an inability to establish and maintain relationships as contemplated in the criteria for a 70 percent evaluation. Based on the foregoing, the Board finds that, prior to December 17, 2019, the Veteran's symptoms more closely align with the criteria for a 50 percent disability rating. Overall, the Veteran has not demonstrated a level of impairment consistent with occupational and social functioning in most of the areas referenced by the 70 percent evaluation criteria, or total occupational and social impairment to warrant a 100 percent evaluation. Mauerhan, supra; Vazquez-Claudio, supra. The criteria for the next higher rating of 70 percent have not been met or approximated for the period on appeal prior to December 17, 2019. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Since December 17, 2019 In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an evaluation in excess of 70 percent for PTSD from December 17, 2019. The preponderance of the evidence of record does not indicate gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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; or, memory loss for names of close relatives, own occupation or own name. In January 2020, the Veteran again reported frustration about his rating. He endorsed symptoms including insomnia, irritability, anhedonia, difficulty concentrating, memory problems, hypervigilance, intrusive thoughts of trauma, and exaggerated startle response. He also reported seeing people who died. He noted that his wife helps him dress and he does not care how he looks. He reported chronic pain and is on morphine. He does not interact with friends. He stated that he watches TV and cooks once a week. A mental status examination revealed that he was calm, cooperative and dressed appropriately. He ambulates with a cane. Speech was normal in rate and volume. His mood was described as euthymic, and affect was congruent with mood. As in prior examinations, he was noted to be distractible and had brief concentration. Recent memory was impaired but long-term memory was normal. His thought process was normal, linear and goal-oriented. There were no auditory or visual hallucinations noted and no delusional thoughts. Insight and judgment were described as good. He was alert and fully oriented to person, place, time and situation. He denied any suicidal ideation. See January 2020 VA treatment record. The Veteran was afforded a VA examination in March 2020. The Veteran described being often irritable, angry and impatient. He is currently living with his wife of ten years. He is mostly able to bathe, dress and toilet independently but needs assistance with bathing. He is unable to move around without assistance due to his back problems. He has a valid driver's license and is able to drive independently without difficulty. He can also prepare basic food such as sandwiches and microwave meals without assistance. He is able to complete basic household chores as long as they do not involve prolonged standing, heavy lifting or bending. He reported being able to manage money effectively. He reported feeling depressed and difficulty sleeping because of flashbacks. He also endorsed passive hallucinations and images of dead people in Vietnam. He reported that his present conditions are impacted by current medical problems. His speech was normal and he was alert and fully oriented to person, place, situation and time. He did not display any fine motor shakes, tremors, or significant problems with motor functioning. It was observed that he used a walker to ambulate. He demonstrated fair attention and concentration as he was able to attend to the examiner's questions throughout the interview without distraction. He was able to complete serial calculations without error. His general thought processes appeared to be coherent, logical, and goal-directed. Thought form and content appeared to be age appropriate and unremarkable. He denied having any suicidal or homicidal ideations. He was not considered to be a threat to himself or others. See March 2020 VA examination report. The Veteran's disability picture, to include the severity, frequency, and duration of his symptoms, is more consistent with a 70 percent rating throughout the period on appeal. Moreover, to the extent that any of the symptoms contemplated in the rating criteria for a 100 percent evaluation may be shown or argued, the Board finds that the Veteran's PTSD was not productive of total occupational and social impairment. The Board emphasizes that a 100 percent disability evaluation requires both total social and occupational impairment. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). The Board acknowledges that the Veteran did have social impairment during this time period. However, as noted above, he was still able to maintain relationships with some of his children and siblings. He is married and living with his wife of 10 years. He told the March 2020 examiner that his social support system consists of his wife and one friend. He attends social gatherings such as church occasionally. See March 2020 VA examination report. As such, it cannot be said that he had total social impairment. In addition, the record reflects that his condition is complicated by his physical problems including his back. He is unable to walk without support. He also conceded that he left his previous employment because of difficulties breathing and exposure to chemicals and that his physical problems prevent him from working. He told the March 2020 examiner that he is able to drive, prepare meals, and manage his finances effectively. He is able to complete basic chores as long as they do not involve long periods of standing, heavy lifting or bending. After considering the evidence of record, the Board finds that the Veteran's PTSD more closely approximates the criteria for a 70 percent disability rating. Overall, the Veteran has not demonstrated a level of impairment consistent with the 100 percent criteria, nor have the Veteran's symptoms caused total occupational and social functioning referenced by the 100 percent evaluation criteria. Mauerhan, supra; Vazquez-Claudio, supra. The criteria for the next higher rating of 100 percent have not been met or approximated for this time period. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Therefore, the Board finds that an increased evaluation is not warranted. The Veteran and his representative have not raised any other issues nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.