Citation Nr: 22019969 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 12-26 549 DATE: April 3, 2022 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to May 11, 2010, is denied. FINDING OF FACT Prior to May 11, 2010, the Veteran's PTSD was productive of no more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for PTSD prior to May 11, 2010, are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code 9411 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1967 to May 1969 in the United States Marine Corps (USMC). This case initially came before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran testified before the undersigned Veteran's Law Judge. A transcript of the hearing is of record. In a February 2021 decision, the Board granted a 50 percent rating for PTSD prior to May 11, 2010, and a 70 percent rating beginning May 11, 2010. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2022, pursuant to a Joint Motion for Partial Remand (Joint Motion), the Court vacated the portion of the Board's decision that denied an initial rating in excess of 50 percent prior to May 11, 2010. The case has since been returned to the Board. Increased Rating PTSD prior to May 11, 2010 In July 2009, the Veteran filed a claim for service connection for PTSD. He stated that he was having emotional issues that he believed were the result of his military experiences. VA treatment records dated in November 2006 and November 2007 indicated that PTSD screening was negative. The Veteran denied having nightmares; trying hard not to think about a stressful event; being constantly on guard, watchful, or easily started; or feeling numb or detached from others, activities, or his surroundings. During the December 2009 VA examination, the Veteran reported that he had never had any prior mental health treatment. He stated that during service, one of his very close friends was killed in Vietnam and it took days to recover his body; and, that it was stressful to watch the recovery of other deceased soldiers. After returning from Vietnam, he stated that his drinking increased to 12 to 15 beers on the evenings that he did not work. He also reported that he divorced his wife because he did not trust her. He stated that he saw his son and grandson occasionally, that he had two close friends, and that he had many acquaintances. He indicated that his relationships did not last due to lack of trust and that it was difficult for him to initiate conversations with people. He reported that he worked for 40 years after his separation from service and that in his leisure time he rode his motorcycle. He stated that he made suicide attempt while going through his divorce in 1979, and that since then, he had thought about suicide but had never attempted it. Regarding current symptoms, the Veteran reported that he slept on average only three to four hours per night, and that three to four times per week he had dreams that mostly involved memories of his friend and other soldiers who were killed in Vietnam. He stated that he got angry when he heard news about the Iraqi and Afghanistan war situation and tended to yell at scream at the television, but had not been violent towards anyone. On mental status examination, it was noted that the Veteran was casually and appropriately dressed and neatly groomed. The examiner noted that psychomotor activity included wringing of his hands or tapping of the toes when talking about emotionally charged subjects such as the war. His speech was generally unremarkable; his attitude was generally cooperative and friendly; his affect was full, and he was teary-eyed when talking about his dead colleagues; and his mood was uneasy talking about the war. Regarding attention and concentration, it was noted that he was able to spell a five letter word forwards and backwards. He was fully oriented. His thought processes were unremarkable. His thought content was generally unremarkable, although he expressed suspiciousness and not trusting anyone, the government, or the police force. He did not have any delusions or hallucinations. Regarding judgment, it was noted that he understood the outcome of his behavior. It was noted that he had initial and mid insomnia frequently. He did not exhibit any inappropriate behavior. Regarding abstract thinking, he was able to interpret proverbs appropriately. He had no obsessive or ritualistic behaviors. He denied experiencing panic attacks but did indicate that he could feel anxious in very closed spaces and at times waking up from his dreams. He denied suicidal thoughts, ideations, plans, or intent at that time. Regarding homicidal thoughts, he did not want to answer the question affirmatively, but stated that in general, he did not. He reported that he had fair impulse control but also stated that he could be very impulsive. For example, he stated that if someone called him to go ride his motorcycle, he would do that impulsively. He reported that he maintained good hygiene and had no problems with activities of daily living. He had no episodes of violence in the past 10 years. His immediate and remote memory was good. With recent memory, he was able to remember two out of three objects and the third object with prompting. The examiner determined that the Veteran met the criteria for chronic PTSD, alcohol abuse in partial remission, and that he had mild insomnia. The examiner noted that the Veteran had persistent reexperiencing of the symptoms and dreams and thoughts, and that he had shown avoidance of conversations and numbing or responsiveness as he had been a loner and had not had many friends or much attachment. It was noted that his symptoms also included persistent increased arousal; sleep disturbance; irritability; some hypervigilance; and exaggerated startle response. The examiner indicated that his PTSD symptoms appeared to be related to changes and impairment of his quality of life as he seemed to be lacking in much social interactions with people and much recreational activity except riding on his motorcycle. His symptoms also resulting in him not trusting people and lacking social interpersonal relationships but had not significantly affected his employment as he had a job for 40 years as a pipe fitter. The examiner indicated that his signs and symptoms were relatively moderate as he had good adaptability skills and that he could be helped with his sleep and dreaming and other symptoms if he became involved in treatment. In a December 2009 rating decision, the RO granted service connection and assigned an initial 30 percent rating for PTSD effective July 22, 2009. A March 2010 VA treatment record indicated that a depression screening was negative. The Veteran denied having little interest or pleasure in doing things or feeling down, depressed, or hopeless. He denied being depressed or anxious. On May 11, 2010, the Veteran filed a notice of disagreement (NOD). He stated that the December 2009 VA examiner failed to compile his findings on the information available. He stated that he had a strong sense of survivor guilt, which had led to his significant social impairment. He also stated that he had intense fear and helplessness that led to mood swings and destruction of the family unit. He noted that although the examination report noted anxiety attacks and panic attacks weekly or less, he persistently reexperienced traumatic events at least three times a week along with anxious mood. It was argued that he obviously did not have the ability to establish or maintain an effective relationship; that suicidal and homicidal ideation had been present with at least an attempt at suicide several years ago. It was noted that the Veteran was guarded in his response to homicidal ideations. It was further argued that his occupational and social impairment had been significantly impaired by his PTSD with his anger, impulsive actions, intrusive thoughts, sleep disorder, continued and persistent reoccurring dreams/thoughts of combat, and suicidal ideation. It was further noted that although he worked in an occupation for 40 years, he had not been with any one employer but through a labor union and that he worked in positions that allowed him to work alone, relieving him of the responsibilities of others. It was requested that he be awarded a 70 percent rating. An October 2010 VA treatment record indicated that a depression screening was negative. The Veteran denied having little interest or pleasure in doing things or feeling down, depressed, or hopeless. He denied being depressed or anxious. A June 2011 VA treatment record indicated that a depression screening was negative. The Veteran denied having little interest or pleasure in doing things or feeling down, depressed, or hopeless. In June 2011 and January 2012, he denied being depressed or anxious. A January 2012 PTSD screening was negative. The Veteran reporting having nightmares or intrusive thoughts and being constantly on guard, watchful, or easily startled. He denied trying hard not to think about it or going out his way to avoid situations that reminded him of it. He also denied feeling numb or detached from others, activities, or his surroundings. A June 2012 VA examiner opined that the Veteran's PTSD symptoms were productive of occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication, i.e., the criteria for a 10 percent rating. At that time, he reported that he had been involved in a relationship with a woman for 1 12 years and enjoyed close relationships with his son, step-daughter, and grandchildren. He reported that he had two close friends, but that one committed suicide two years ago. He reported that prior to his retirement, he got along pretty well with his supervisor but that there were conflicts with his co-workers on occasion and a lot of irritability. He firmly denied suicidal and homicidal ideations. Minor memory problems were reported, and it was noted that he could not remember anything about his initial return from Vietnam. He denied panic attacks. It was noted that depression and anxiety were prevalent. He stated that he had continued sleep impairment. Symptoms included depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; flattened affect; and disturbances of motivation and mood. The examiner did not indicate that the Veteran had difficulty in adapting to stressful circumstances, including work or a work-like setting or difficulty/inability to establish and maintain effective relationships. However, the examiner also opined that that it would be difficult for the Veteran to obtain and maintain gainful employment due to his career specialty and PTSD symptoms. In a February 2021 decision, the Board granted an initial 50 percent rating for PTSD prior to May 10, 2010, and a 70 percent rating beginning from that date. The Board determined that the Veteran's overall symptomatology more closely approximated the criteria for a 50 percent rating rather than a 30 percent rating prior to May 11, 2010. The Board concluded that the Veteran's overall symptomatology more closely approximated the criteria for a 70 percent rating beginning May 11, 2010. The May 11, 2010, date was based on "the day VA received the Veteran's notice of disagreement in which he reported his symptoms were worse." As noted above, the Veteran appealed the Board's February 2021 decision to the Court. In the Joint Motion, the parties noted that the Board relied on the NOD receipt date in assigning the effective date of May 11, 2010, and that the NOD was retrospective and referenced the December 2009 VA examination findings as well as symptoms that occurred prior to May 2010. The parties agreed that a remand was warranted for the Board to address the relevant evidence of record, including the retrospective nature of the Veteran's NOD and determine whether an increased rating for PTSD was warranted prior to May 11, 2010. In light of the Joint Motion, the Board has considered the Veteran's NOD, including its retrospective nature, but finds the contemporaneous medical evidence more probative. The December 2009 VA examination report indicated that the Veteran had sleep disturbances and it was noted that he had "mild" insomnia. It was also noted that he had persistent increased arousal; irritability; some hypervigilance; and exaggerated startle response. Regarding social impairment, the examiner noted that his symptoms impacted the quality of his life and that he appeared to lack social interaction and had difficulty trusting people. The May 2010 NOD indicated that the Veteran's PTSD symptoms resulted in "significant social impairment" and him being "alone and estranged." Other records during that timeframe, however, indicated that he had two close friends and many acquaintances. Later record indicated that he had a girlfriend of 1 12 years and good relationships with his children and grandchildren. Therefore, while his PTSD symptoms certainly resulted in difficulty establishing and maintaining effective social relationships consistent with a 50 percent rating, the evidence did not indicate an inability to establish and maintain effective relationships consistent with a 70 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The May 2010 NOD also noted that the Veteran persistently reexperienced traumatic events at least three times a week with anxious mood. During the December 2009 VA examination, he denied experiencing panic attacks, but stated that he could feel anxious working in very closed spaces and had similar feelings at times after waking up from his dreams. The examiner later noted that he persistently reexperienced the traumatic events in dreams that occurred three times per week and intrusive thoughts happening only at night when he was unable to sleep. Notably, VA treatment records indicated that the Veteran denied being anxious in March 2010, October 2010, June 2010, and January 2012. In fact, in January 2012, he denied having nightmares or experiencing intrusive thoughts. Overall, the Board finds that his symptoms were consistent with a 50 percent rating prior to May 11, 2011, i.e., productive of occupational and social impairment with reduced reliability and productivity and similar in severity and frequency as experiencing panic attacks more than once a week. The evidence does not indicate that his anxiety/reexperiencing symptoms were similar in severity and frequency as near continuous panic or depression affecting the ability to function independently, which is the level of impairment contemplated in a higher, 70 percent rating. The May 2010 NOD also noted that the Veteran had suicidal and homicidal ideation with a history of an attempt at suicide several years ago. The December 2009 VA examiner noted that the Veteran had a history of suicidal ideation and reported that he attempted suicide in 1979; however, he denied any current suicidal ideation. Regarding homicidal thoughts, he did not want to answer the question affirmatively, but stated that in general, he did not. He reported that he had fair impulse control and did not have a history of violence. In January 2012, he firmly denied both suicidal and homicidal ideation. Prior to May 11, 2010, the Board finds that the Veteran's symptomatology more closely approximates the criteria for a 50 percent rating, i.e., occupational and social impairment with reduced reliability and productivity. 38 C.F.R. § 4.130, Diagnostic Code 9411. As discussed above, the Veteran was noted to have symptoms of depression, irritability, detachment from others, difficulty maintaining relationships, isolative tendencies, and distrust of others. The Board, however, does not find that a rating in excess of 50 percent is warranted prior to May 11, 2010. The evidence does not indicate that the Veteran's symptoms resulted in occupational and social impairment with deficiencies in most areas. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran maintained friendships, familial relationships with his son, and grandchild, and even a romantic relationship. He also was sociable when engaged, as indicated by his many acquaintances. Additionally, there was no evidence that the Veteran was a persistent danger to himself or others; that he had delusions or hallucinations, or near continuous panic; or that he had an inability to establish and maintain effective relationships. Further, the Board notes that there is no evidence that the Veteran left his job due to symptoms of his PTSD. In fact, the Veteran was noted to have retired following a 40-year career. Therefore, the Board finds that a rating in excess of 50 percent prior to May 11, 2010, is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2021). As noted above, the Veteran has considered the May 2010 NOD and the statements and arguments therein, including its retrospective nature. However, the Board finds that the contemporaneous medical evidence more probative. In this regard, the Board notes that the evidence before and after the May 2010 NOD indicated that his symptoms were less severe than reported in the NOD. Notably, VA treatment records indicated that the Veteran denied being depressed or anxious in March 2010, October 2010, June 2010, and January 2012. Considering the totality of the evidence, the Board finds that the Veteran's symptomatology most nearly approximated the criteria for no more than a 50 percent rating prior to May 11, 2010. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2021). Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to a rating in excess of 50 percent for PTSD prior to May 11, 2010, is not warranted. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.