Citation Nr: 23045895 Decision Date: 08/17/23 Archive Date: 08/17/23 DOCKET NO. 19-35 694 DATE: August 17, 2023 ORDER A higher rating evaluation in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD), to include persistent depressive disorder with dysthymic syndrome, is DENIED. FINDING OF FACT The severity, frequency, and duration of the Veteran's PTSD and persistent depressive symptoms have not more closely approximated total occupational and social impairment. CONCLUSION OF LAW The criteria for a higher rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 501, 1155, 5107; 38 C.F.R. §§ 3.102, 3.326, 3.655, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434-9411. FACTUAL AND PROCEDURAL BACKGROUND The Veteran served on active duty in the Armed Forces of the United States from March 1969 to March 1973. The case is on appeal to the Board of Veterans' Appeals (Board) from a September 2018 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). Following the September 2018 rating decision, the Veteran filed a timely notice of disagreement (NOD) in which he appealed the present increased rating claim, along with additional increased rating claims for hearing loss, tinnitus, and a total disability rating based on individual unemployability (TDIU). In October 2019, the Veteran, through counsel, withdrew the increased rating claims for hearing loss and tinnitus. See October 14, 2019, correspondence. Thus, those issues are no longer on appeal. In addition, in a November 2019 rating decision, the RO granted a TDIU, effective May 31, 2018, the date on which the present claim and the TDIU claim were received. Following the November 2019 rating decision, the Veteran filed a Supplemental Claim under the Appeals Modernization Act (AMA) system contending that an earlier effective date is warranted as the TDIU remains a pending issue stemming from an August 2013 rating decision grating service connection for PTSD with a 70 percent rating. The Veteran has continuously pursued the effective date of the award of a TDIU at the RO level under the AMA. Accordingly, the issue is not part of this Legacy appeal. The Veteran has additional appeals under the AMA system pending adjudication. These will be the subject of future decisions. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION A higher rating in excess of 70 percent for service-connected PTSD Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § § 4.1. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown as a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 9434 refers to Major Depressive Disorder and Diagnostic Code 9411 refers to PTSD. VA evaluates all psychiatric disorders under the General Rating Formula for Mental Disorders provided in 38 C.F.R. § 4.130. Under the General Rating Formula for Mental Disorders: A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting 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); and inability to establish and maintain effective relationships. A 100 percent is warranted where there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found; a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis Through his procedural appeal documents and statements, the Veteran contends that a higher rating in excess of 70 percent is warranted for PTSD and depression as symptoms have caused him significant social, family, and occupational impairment, resulting in problems such as difficulty in maintaining effective work relationships, nightmares, chronic sleep impairment, irritability, social isolation, detachment from others, and concentration problems. The Board has considered the Veteran's and his wife's statements, the relevant VA and private treatment records, the VA examination afforded in August 2018, and the private medical examinations and opinions received in September 2019 and October 2022. After engaging in a holistic analysis assessing the severity, frequency and duration of the signs and symptoms of the Veteran's PTSD and depression throughout the appeal period, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples and when looking at the effects determining the impairment level, the Board finds that the Veteran's PTSD and depression have manifested in no worse than occupational and social impairment with deficiencies in most areas. That level of impairment is contemplated by the already assigned 70 percent rating. The next highest 100 percent level is not approximated since a total occupational and social impairment has not been shown. See Vazquez-Claudio, 713 F.3d at 117; Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Mauerhan, 16 Vet. App. at 442. The Veteran was afforded a VA examination by a VA psychiatrist in connection with his increased rating claim in August 2018. The examination report reflects the Veteran had occupational and social impairment with reduced reliability and productivity due to symptoms associated with his PTSD and depression. This characterization of the level of impairment corresponds to a 50 percent rating. The examiner stated that the Veteran's symptoms of PTSD have not changed in their chronic character since his Vietnam combat deployment but have stabilized with regards to frequency and intensity. The Veteran reported sleeping restlessly and lightly at night, daytime fatigue, irritability, and decreased concentration. The report indicates that the Veteran lives with his supportive wife of 40 years, who helps him sustain intermittent contacts with his sister, bother, and son. The examiner noted, however, that the Veteran's psychiatric disorders have reduced his functioning, including family socialization and outings. The examiner acknowledged symptoms such as depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work or social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Such symptoms more nearly approximate the criteria required for the already assigned 70 percent rating. In a September 2018 rating decision, the RO confirmed and continued the Veteran's 70 percent rating evaluation in effect since February 2012. The Veteran timely appealed the rating decision. While pending appellate consideration at the RO level, the Veteran submitted a private mental health disorders opinion in September 2019. Dr. A.L.G., a clinical psychologist, described the Veteran as casually dressed and groomed, pleasant, cooperative, with no fluctuation in his level of consciousness, euthymic mood and affect. The examiner noted that the Veteran was stoic and tried to stay positive but had difficulties discussing his experiences while deployed in Vietnam. While the Veteran had difficulty recalling dates and timelines, his judgement and insight were intact. The report reflects that the Veteran denied hallucinations and delusions and acknowledged continued suicidal ideation, without any plan or intent. In discussing the Veteran's mental health records, the examiner noted symptoms such as moderately severe depressed mood, ongoing irritability, anger, anxiety, difficulty with interpersonal relationships, to include his wife and co-workers, and difficulty maintaining friendships. The report further reflects that the Veteran was described as socially withdrawn, easily frustrated, and with less interest in activities. In discussing the August 2018 VA examination report, the examiner noted that the Veteran had occasional non-intentional brief suicidal ideation, without suicidal or homicidal impulses, and that his depression symptoms had been worsened by his chronic insomnia, somatic pains, family loss, and incremental social isolation. As to the level of severity, the examiner opined that the Veteran's symptoms have interfered with his ability to maintain employment and have caused him to suffer from impairments in his work responsibilities. The examiner concluded that the Veteran's PTSD and depression symptoms continue to be significant and cause him occupational and social impairment in most areas, such as work, family relations, judgement, and thinking. The examiner stated that although the Veteran was previously found to have a 70 percent rating for this condition, it was her professional opinion that his level of impairment more closely approximates a 90 percent rating. In a subsequent October 2022 private opinion from a vocational counselor and in connection with an unrelated TDIU claim, it is noted that the Veteran has an easy loss of mental focus in conversations, feels socially withdrawn, has easy task frustration, experiences chronic insomnia even with sleep medicine, and experiences irritability and decreased concentration. VA treatment records for the appeal period in question, which begins on May 31, 2018, plus the one-year look back period (see Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010)), reflect that the Veteran has been seen by his VA providers for continuous treatment of his depression and anxiety. In May 2017, his VA provider decreased the Veteran's anxiety medication due to improvement of symptoms. See May 22, 2017, progress notes. Shortly thereafter, the Veteran underwent a depression screening which revealed a score of "0" which is negative for depression. See June 23, 2017, progress notes; see also April 12, 2018, progress notes (no new depression or anxiety). In April 2019, the Veteran underwent a neuropsychology assessment for complaints of cognitive decline. In the assessment, the VA provider noted that the Veteran drives and denied difficulties operating a motor vehicle, can manage his finances, if needed, and could independently perform his activities of daily living. The Veteran described his mood as "average", acknowledged current feelings of depression and anxiety, and denied any current thoughts of harm to self or others. See April 8, 2019, Neuropsychological assessment. The VA psychologist described the Veteran as alert and oriented to person, place, time, and reason for the evaluation. He was dressed in casual attire with adequate hygiene, with fluent speech and normal for rate, tone, and volume. Content of speech was within normal limits. Comprehension was intact based on understanding of test instructions and conversational speech. Mood was reported as "ok" with flat affect. Thought process was generally goal directed. Judgement and insight appeared to be intact. There was no evidence or endorsement of psychotic phenomenon. Behaviorally, the Veteran was cooperative and friendly throughout the testing session. The Veteran denied suicidal or homicidal ideation, plan, or intent and endorsed a "mild" level of depressive and anxiety symptoms. Id. Thereafter, in October 2019, the Veteran underwent another depression screening which revealed a negative screen for depression. See October 2, 2019, progress notes; see also subsequent progress notes dated on October 21, 2019 (negative screening for depression); October 15, 2020 (negative screen for depression); October 8, 2021 (while the Veteran reported feeling down, depressed, or hopeless several days, he denied having little interest in doing things. The providers determined that his score was "1" which is a negative screen for depression); October 25, 2022 (negative screen for depression); and January 23, 2023 (the Veteran denied current stress). Private treatment records from L.R.M.C. show that the Veteran reported feeling depressed. See June 28, 2017, and October 26, 2017, progress notes. Mental health notes documented by Dr. R.L.J., a psychiatrist from the D.P.C., show that in June 2019 the Veteran denied hallucinations, suicidal or violent ideations, his insight and judgement were good, with full orientation, intact memory, and fluent speech. The provider noted that the Veteran presented moderately depressed, angry, and worried. The Veteran reported having worked on a door panel in a laundry room and enjoyed being creative. See June 6, 2019, progress notes. Thereafter, the Veteran continued seeing his mental health provider without signs of worsening of his symptoms. See progress notes dated on August 5, 2019 (not depressed, anxiety is lower, and affect appropriate; gets frustrated with wife's indecision at times; denied hallucinations, delusions; fully oriented, intact memory, good insight and judgement, fluent speech, and the Veteran presented well-nourished and well-groomed). See also progress notes dated on November 1, 2019, January 24, 2020, and July 13, 2020 (reflecting identical objective findings). In October 2020, the Veteran presented to his appointment moderately anxious. Nonetheless, the provider indicated that he was fully oriented, with good insight and judgement, fluent speech, and that the Veteran has been enjoying working on projects at home. See October 22, 2020, progress notes. Additional private records from C.F.M. reflect that in December 2018, the Veteran complained of insomnia, anxiety, and depression. See December 2, 2018, progress notes. The provider noted symptoms of recurrent depression that were stable. The Veteran denied suicidal or homicidal ideation. Id. In August 2020, the Veteran's private provider noted that his depression and anxiety were discussed. The provider described the Veteran's disability as "stable." August 7, 2020, progress notes; see December 22, 2020, January 18, 2021, March 26, 2021, June 25, 2021, and November 5, 2021, progress notes (the provider continued to describe the Veteran's mental health as stable). Private treatment records from B.C.C. reflect that on June 24, 2020, and November 10, 2020, the Veteran denied depression or anxiety. In an August 2019 sworn statement, the Veteran reported that he has struggled with suicidal ideation since he was released from service and currently experiences thoughts of suicide once or twice a year. He additionally reported that his relationships with family members, including his wife, have been adversely affected because he is unable to let people in for fear of losing them. He also stated that he has lapses in judgement where he spends money recklessly and his wife needs to intervene, and that he has difficulty managing irritability, which made continuing his employment untenable. He does his best to manage his symptoms and has regular therapy sessions with a long-time provider. The Veteran also endorsed nightmares 2 to 5 times per month. In a separate sworn statement on the same date, the Veteran's wife indicated that she has been married to the Veteran for 46 years; that she witnessed the difficulties he experienced with coworkers, and one in particular, prior to retirement, that resulted in anger and verbal altercations that carried over into the home impacting the Veteran's relationship with his son; that the Veteran experiences lapses in judgement in how to manage finances, evidenced by unnecessary spending; and that there has been a change in the Veteran's ability to recall words. She also indicated that the Veteran becomes severely depressed and has expressed thoughts of harming himself many times throughout the years and she is concerned about his safety. The Veteran's wife indicated that the Veteran's symptoms have affected their lives greatly for many years and have interfered with their ability to interact socially with others, given the Veteran's isolation, vigilance, and unease. The Board believes the Veteran and his spouse and credits their averments. The Board has weighed the evidence and finds the lay and medical evidence of record persuasive and probative in determining the severity of the Veteran's PTSD and depressive disorder. There is much in accord and little in conflict. The VA and private examiners, along with the mental health providers who treated and assessed the Veteran for clinical purposes, conducted and interviewed the Veteran, performed medical status examinations and assessments, and reviewed his history. The Board credits the observations and assessments of the VA and private clinicians. The Board gives little weight, however, to either the August 2018 VA examiner's ultimate opinion (Veteran's level of impairment approximates 50 percent rating) or Dr. A.L.G.'s ultimate opinion (Veteran's level of impairment approximates 90 percent rating) because the Board finds neither is supported by the evidence of record; that the symptoms the Veteran experiences more closely approximates a 70 percent rating than any other when applying the facts to the schedular criteria. The Board explains. The VA and private medical opinions and the assessments conducted throughout the appeal period in question consistently reflect the Veteran can communicate coherently, rationally, and fluently. The treating and examining providers have also agreed that he is fully oriented, with good insight and judgement, an appropriate affect, and he has consistently denied delusions and hallucinations or displayed signs of disordered thoughts. His symptoms are stable, his hygiene is not poor, he drives and can complete activities of daily living on his own, and enjoys working on house projects, which, taken together, are not in accord with total occupational and social impairment. This is not to suggest the Veteran has not been greatly impacted by his condition or to diminish the symptoms he experiences every day. There is no question his occupational and social functioning have been impaired. That he can do many things despite the torments he suffers are to his great credit. The social and occupational level of impairment shown in the evidence of record, however, is contemplated by the 70 percent rating, for which there is an inability to establish and maintain effective relationships, irritable behavior with angry outbursts, nightmares, chronic sleep impairment, social isolation, detachment from others, concentration problems, short and long-term memory, and near continuous depression affecting the ability to function independently. 38 C.F.R. § 4.130; see Bankhead, 29 Vet. App. 21. The suicidal ideation the Veteran experiences, too, is contemplated within the 70 percent rating. Id. Upon careful consideration of all the evidence of record, when comparing all the Veteran's reported and documented psychiatric symptoms to the rating schedule, the Veteran does not manifest or nearly manifest the criteria for a 100 percent disability rating due to his PTSD and depressive disorder and their associated symptoms. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and a higher rating in excess of 70 percent for the Veteran's service-connected PTSD with depressive disorder is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. STEVEN V. ADLER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.