Citation Nr: 23054343
Decision Date: 09/28/23	Archive Date: 09/28/23

DOCKET NO. 17-42 565
DATE: September 28, 2023

ORDER

An initial rating of 50 percent, but no higher, prior to July 28, 2015, for posttraumatic stress disorder (PTSD) is granted. 

FINDING OF FACT

Prior to July 28, 2015, the severity, frequency, and duration of the Veteran's PTSD symptoms more closely approximated occupational and social impairment with reduced reliability and productivity, but not occupational and social impairment with deficiencies in most areas.

CONCLUSION OF LAW

Prior to July 28, 2015, the criteria for an initial rating of 50 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1967 to May 1969. The Veteran has been granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective from July 28, 2015.

This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In February 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record.

A December 2020 Board decision, among other things, denied entitlement to an initial rating in excess of 30 percent for PTSD, prior to May 29, 2020. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand (Joint Motion), and, in an October 2021 Court Order, the Court granted the Joint Motion, partially vacating the Board's December 2020 decision and remanding the matter for compliance with the Joint Motion.

A November 2022 Board decision, among other things, denied entitlement to an initial rating in excess of 30 percent for PTSD, prior to July 28, 2015. The Veteran appealed to the Court. The parties submitted a Joint Motion, and, in a May 2023 Court Order, the Court granted the Joint Motion, partially vacating the Board's November 2022 decision and remanding the matter for compliance with the Joint Motion. It is noted that the Veteran did not challenge those portions of the Board's decision that denied entitlement to (1) a disability rating in excess of 70 percent for PTSD from July 28, 2015, to May 29, 2020, and (2) a TDIU, prior to July 28, 2015, and requested that the Court dismiss the appeal with respect to those issues. Further, it is noted that Zachary Stolz collected an award of $3,375.22 and has apparently elected not to continue his representation of the Veteran before VA. See Fiscal Transaction (06a) EAJA Payment (July 2023).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b).

Evaluations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. 

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 any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509.

Entitlement to an initial rating in excess of 30 percent for PTSD, prior to July 28, 2015.

An October 2013 rating decision granted the Veteran's claim for service connection for PTSD and assigned a 30 percent rating, effective from November 21, 2012, under 38 C.F.R. § 4.130, Diagnostic Code 9411. This appeal arises from the Veteran's disagreement with that evaluation. See NOD (May 2014); Hearing Transcript (February 2020). 

The Veteran, and his representative, contends that a higher rating for PTSD, prior to July 28, 2015, is warranted. In support of the contention, the representative submitted a copy of the May 2023 Joint Motion. See Appellate Brief (September 2023).

The Board concludes that, prior to July 28, 2015, the evidence supports the assignment of a 50 percent rating, but no higher, for the Veteran's PTSD. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.

Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).

A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning.

A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment.

A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation).

A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment.

Treatment records, the October 2013 VA-obtained examination report, and the Veteran and spouse's lay statements show that his PTSD was manifested by symptoms associated with a 50- or lower-percent rating (e.g., depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships). He also has symptoms that are not listed with a specific rating, such as intrusive thoughts, avoidance, mildly halting speech, easily overwhelmed, reduced ability to perform tasks, and reduced attention and concentration performance.

The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 30 or 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. In this regard, the record, overall, does not reflect that the Veteran is suicidal, homicidal, psychotic, manic, hypomanic, obsessive, or compulsive. Further, symptoms of intrusive thoughts, avoidance, mildly halting speech, easily overwhelmed, reduced ability to perform tasks, and reduced attention and concentration performance, are similar to suspiciousness, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment (such as forgetting to complete tasks), impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, which are contemplated by the 30 or 50 percent rating.

Treatment record, dated in June 2014, reveals that the Veteran was, or the examiner found him to have, casually dressed; appropriately groomed; alert and oriented to person, place, time and event; within normal limits concentration and attention; cooperative behavior; within normal limits thought process and association; no unusual thought content; intact memory; good eye contact; normal rate and rhythm speech; and anxious mood. The treatment record also notes good insight and judgment, and that suicidal or violent ideation was denied. Treatment record, dated in August 2014, reveals that the Veteran completed his final session of Prolonged Exposure for PTSD, and that his symptoms had improved and were now in the subthreshold range. The clinician also noted that depression had remained in the moderate range over the course of treatment and that he recently started antidepressant medication. Treatment record, dated in November 2014, shows that the Veteran reported no significant improvement or worsening of PTSD symptoms. Treatment record, dated in April 2015, reveals that the Veteran was casually dress, adequately groom, and appeared his stated age. It also notes that speech and language function were within normal limits even though the Veteran demonstrated mildly halting speech that appeared related to some difficulty organizing his thoughts rather than a frank word-finding difficulty. Further, the treatment record notes an intact comprehension, an anxious mood, and that the Veteran presented overwhelmingness, reduced persistency, and a tendency to presume inability to perform tasks. The clinician also noted that psychiatric, psychosocial and pain symptoms commonly interfered with the Veteran's attention and concentration performance. Treatment record, dated in June 2015, shows casually but appropriately attired, cooperative behavior, established and maintain eye contact, anxious mood, coherent speech, well-organized thought production, and relevant thought content. The treatment record also notes adequate concentration, grossly intact memory, good judgement, good insight, grossly intact cognitive, orientation to time, place, and person, and no evidence of hallucinations or delusions. Further, the treatment record notes that suicidal or homicidal ideation, intent, or plan was denied.

An October 2013 VA-obtained examination report reflects symptoms of anxiety and mild memory loss. At the examination, the Veteran reported a single past mental health evaluation, in which, he was diagnosed with PTSD. The Veteran denied a past psychiatric history, to include mental health treatment, psychotropic medication use, or psychiatric hospitalization. He additionally denied any current or recent symptoms of depression, to include depressed mood; anhedonia; any history of mania or hypomania; any history of panic attack; and any history of visual or auditory hallucinations. The Veteran also reported that he retired three years ago, worked for an insurance company for 25 years, and that he did not have any workplace disciplinary actions. Indeed, the report shows that the Veteran described himself as a "good agent." Behavioral observations included unremarkable speech rate and tone, thought content and progression, tangentiality, circumstantiality, loose associations, flight of ideas, hallucinations, and delusions. The report also notes that the Veteran was alert and oriented to person, place, time, and situation, within normal limits attention and concentration, good fund of knowledge, good language, good insight and judgement, average intelligence, and within normal limits abstract reasoning. Lastly, the report notes that the Veteran denied suicidal and homicidal ideation.

At the February 2020 Board hearing, the Veteran's spouse testified that he had increased memory issues and that he was recently diagnosed with dementia and Alzheimer's. The spouse also testified that the Veteran's symptoms have worsen and that he goes to VA for treatment. 

Based on the above, and for reasons further explained below, the Board finds that, prior to July 28, 2015, the evidence supports the assignment of a 50 percent evaluation, and no higher, for the Veteran's PTSD. Here, the evidence indicates that the Veteran has good relationships with his close family, to include his spouse and sisters. See C&P Exam (October 2013). To the extent that the mental health symptoms affected his job performance, there is no evidence that he was unable to complete job tasks or had been subject to any discipline as a result of poor work performance. In this regard, the Veteran denied any past disciplinary actions and described himself as a good agent. Moreover, prior to July 28, 2015, the record, overall, shows the Veteran as cooperative, appropriately dressed, having normal speech, good hygiene, normal attention, and fair judgment. The Board acknowledges the Veteran's symptoms of intrusive thoughts, avoidance, mildly halting speech, easily overwhelmed, reduced ability to perform tasks, and reduced attention and concentration performance. However, these symptoms, as noted above, are contemplated by a 30 percent rating or 50 percent rating and are not shown by either the lay or medical evidence to more nearly reflect the criteria for a 70 percent or higher disability rating. Thus, the Board finds the evidence more closely resembles moderate work and social difficulties, which more closely approximates the 50 percent rating.

Further, prior to July 28, 2015, the record, in its totality, does not demonstrate that the Veteran experienced intermittent illogical, obscure or irrelevant speech as a result of his PTSD symptomology. Although there is evidence of mildly halting speech, his treatment records, and examination report overwhelmingly show the Veteran's speech to be normal. In other words, his speech has not been found to be intermittently illogical, obscure, or irrelevant. At most, his halting speech is related to difficulty organizing his thoughts, which is similar to difficulty in understanding complex commands or impaired abstract thinking, and is contemplated by the 50 percent rating. Next, there is also no evidence of the Veteran exhibiting spatial disorientation to time or place, or a neglect of his personal appearance and hygiene. In this regard, as noted above, the majority of the evidence shows that he has been found to be casually dressed, appropriately groomed, cooperative, alert and oriented to person, place, time, and situation. The Veteran's treatment records additionally do not show his thought process to be broken or objectless, such as having loose associations, off-topic responses, lack of logical flow, or restricted content. In addition, he never reported any obsessive thoughts that interfered with his routine activities. Indeed, there is no indication that the Veteran experienced obsessive thoughts which affected his employability or social interactions. In this regard, the record overall shows a positive relationship with his family and that he maintains relationships with his family, to include his sisters. Thus, given the above, the evidence does not demonstrate that the Veteran's symptoms have caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

The Board accepts that the Veteran, and his spouse, is competent to report his symptoms. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for the next higher disability rating, his complaints along with the medical findings do not meet the schedular requirements for a 70 percent rating, as explained and discussed above.

The Board assigns greater probative value to the competent, credible medical evidence, to include the treatment records and examination report, as they were prepared by skilled, neutral medical professionals after evaluating the Veteran and/or review of the record.

In summary, neither the lay nor the medical evidence more nearly reflects the criteria for a rating in excess of 50 percent. The evidence, however, supports the assignment of a 50 percent rating, and no higher, for PTSD.

Accordingly, a 50 percent rating, and no higher, prior to July 28, 2015, for PTSD is granted. As the evidence of record shows no distinct period where the disability exhibited symptoms that would warrant higher evaluations than assigned, there is no basis to stage the rating. See Hart, 21 Vet. App. 505. See Fenderson, 12 Vet. App. at 126. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Lastly, it is noted that the May 2023 Joint Motion directed the Board to consider and discuss evidence after July 28, 2015. See CAVC Decision (May 2023) (". . . as well as a July 2015 VA addendum note that identified thought disorientation, unrealistic thinking and beliefs, persecutory ideation, and a lack of insight, [R. at 1401-02 (July 29, 2015, VA addendum opinion)]."). This evidence, however, was considered and discussed by the Board in the November 2022 decision. Indeed, the Board relied, in part, on this evidence in finding that the severity, frequency, and duration of the Veteran's PTSD symptoms more nearly approximated occupational and social impairment with deficiencies in most areas, from July 28, 2015. See BVA Decision (November 2022) (noting that in July 2015, treatment records showed, among other things, minimal improvement, poor insight, significant thought dysfunction, suspiciousness, impaired thinking, and significant emotional distress). Thus, given the above, the Board finds that no further consideration or discussion of this evidence is warranted. 

 

C.A. SKOW

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Griffey, 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.