Citation Nr: 24008564 Decision Date: 02/21/24 Archive Date: 02/21/24 DOCKET NO. 18-34 307 DATE: February 21, 2024 ORDER Prior to November 8, 2023, entitlement to an increased disability rating in excess of 50 percent for posttraumatic stress disorder is denied. From November 8, 2023, entitlement to an increased disability rating in excess of 70 percent for posttraumatic stress disorder is denied. FINDINGS OF FACT 1. Prior to November 8, 2023, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. From November 8, 2023, the Veteran's posttraumatic stress disorder symptoms most nearly approximated occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to November 8, 2023, the criteria for a disability rating in excess of 50 percent for posttraumatic stress disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. From November 8, 2023, the criteria for a disability rating in excess of 70 percent for posttraumatic stress disorder have not been 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 2005 to March 2009. A Department of Veterans Affairs (VA) Regional Office (RO) originally denied the Veteran's increased posttraumatic stress disorder (PTSD) claim in an October 2017 rating decision. In February 2023, the Board of Veterans' Appeals (Board) remanded entitlement to service connection for chronic fatigue syndrome (CFS), a gynecological disability, peripheral neuropathy of the lower extremities, and paresthesias of the tips of the great toes for additional development. The Board also remanded entitlement to a rating in excess of 50 percent for PTSD for additional development. In consideration of the remanded issues, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board next notes that on August 25, 2023, the Veteran's attorney withdrew his representation of the Veteran. Notice of such was provided to VA as well as the Veteran. Rule 6 (38 C.F.R. § 20.6) governs the withdrawal of services by a representative after an appeal has been filed with the Board. Such requests must show good cause for the withdrawal. Good cause includes illness or incapacitation the attorney, failure of the appellant to cooperate with proper preparation and presentation of the appeal, or other factors which make the continuation of representation impossible, impractical, or unethical. Withdrawal is not available for the mere convenience of the attorney seeking it. The Board finds the Veteran's Counsel's written submission and accompanying correspondence does not establish good cause. The motion is denied. The RO granted service connection for CFS, a gynecological disability, peripheral neuropathy of the lower extremities, and paresthesias of the tips of the great toes in December 2023. As such, the aforementioned remanded issues are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Board notes that, for a gynecological disability, the RO granted service connection for polycystic ovarian syndrome. The Board also notes that the RO rated the appellant's lower extremity peripheral neuropathy together with her bilateral great toe paresthesias under Diagnostic Code 8520. See November 2023 Codesheet. In December 2023, the RO also increased the Veteran's PTSD rating to 70 percent disabling, effective November 8, 2023. As the increased rating does not cover the entire period on appeal and does not encompass the maximum rating, entitlement to an increased PTSD rating is still on appeal. The Veteran's current combined disability rating is 100% effective July 21, 2017. Factual history The Board will begin with a summary of relevant history of the Veteran's psychiatric condition for the appeal period. Private treatment records received with the claim showed anxiety and treatment with medication. The RO afforded the Veteran a Post-traumatic Stress Disorder (PTSD) Compensation and Pension (C&P) exam in October 2017. The October 2017 examination report showed occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). Additional symptoms included anxiety, circumlocutory speech, circumstantial speech, difficulty in adapting to a worklike setting, difficulty in adapting to stressful circumstances, difficulty in adapting to work, panic attacks more than once a week, and stereotyped speech. In November 2017 VA treatment records, the appellant reported being tired. The VA examiner noted the need to support healthier behavior. In January 2018 VA treatment records, the appellant's mood was stable. June 2019 VA treatment records indicated that the appellant was taking medication for anxiety. April 2020 VA treatment records indicated that the appellant was very anxious. April 2020 VA treatment records also indicated that the appellant's mood was doing very well. In February 2021 VA treatment records, the appellant's mood was stable without suicidal ideation or homicidal ideation. April 2021 VA treatment records indicated anxiety and irritability at times with neuropathy pain. VA treatment records indicated that the appellant left her job. VA treatment records also indicated the appellant experienced increasing anxiety at the time of her pregnancy. The RO afforded the Veteran a Review PTSD examination in November 2023. The November 2023 examination report showed occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Symptoms included anxiety, chronic sleep impairment, circumlocutory speech, circumstantial speech, depressed mood, difficulty in adapting to a worklike setting, difficulty in adapting to stressful circumstances, difficulty in adapting to work, difficulty in establishing and maintaining effective work and social relationships, disturbances of motivation and mood, flattened affect, impaired impulse control, obsessional rituals which interfered with routine activities, panic attacks more than once a week, stereotyped speech, and unprovoked irritability with periods of violence. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Although a disability must be considered in the context of the whole recorded history, including service treatment records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If a disability has undergone varying and distinct levels of severity throughout the claims period, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. When a question arises as to which of two ratings applies under a particular DC, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Ratings for mental disorders are assigned based on the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. 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). The General Rating Formula for PTSD is as follows: A 100 percent rating is warranted for 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 (ADLs) (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for name of close relatives, own occupation, or own name. A 70 percent rating is warranted where there is 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 worklike setting); inability to establish and maintain effective relationships. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (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. The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment from a psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms listed in the General Rating Formula for Mental Disorders. See Id. Instead, VA considers all symptoms of a claimant's disorder that affect his or her occupational and social impairment. See Id. at 443. If the evidence demonstrates that a claimant's symptoms or effects that cause occupational or social impairment is equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. VA considers the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id. VA is responsible for determining whether the evidence supports the claim or is evenly balanced, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 1. Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder prior to November 8, 2023 The appellant has been assigned a 50 percent rating for her PTSD from July 9, 2015 to November 8, 2023. From November 8, 2023, the Veteran has been assigned a 70 percent rating for her PTSD. The first question is whether a higher rating may be assigned prior to November 8, 2023. The Veteran's PTSD is evaluated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. For the period prior to November 8, 2023, the evidence weighs against a finding that the Veteran's service-connected psychiatric disorder resulted in occupational and social impairment with deficiencies in most areas, nor total social and occupational impairment. 38 C.F.R. § 4.7. In addition to the October 2017 VA C&P examination report discussed above, the Board has reviewed the appellant's VA and private treatment records for the appeal period from July 21, 2017 (Intent to File) to present. Throughout the records, the appellant reported anxiety. However, she denied suicidal/homicidal ideation. The Board has carefully considered the entire record, with an emphasis on each treatment record and each statement submitted by the Veteran. There are notes about anxiety, medication, and irritability (sometimes associated with her physical disabilities for which she is also being compensated), and there are references to her mood "doing very well" (in an April 2020 medical treatment note) and to an absence of symptoms that are necessary to qualify for a rating higher than 50%. Notably, in terms of social impairment, prior to the November 8, 2023, VA C&P exam, no medical professional identified deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The evidence from the VA and private treatment records does not reasonably suggest deficiencies in most areas as is required for a higher rating. The grant of a 50 percent disability rating for the Veteran's psychiatric disorder for the period prior to November 8, 2023, contemplates all identified psychiatric symptoms of anxiety, circumlocutory speech, circumstantial speech, difficulty in adapting to a worklike setting, difficulty in adapting to stressful circumstances, difficulty in adapting to work, panic attacks more than once a week, and stereotyped speech. The Board acknowledges that the Veteran left her job and experienced increasing anxiety during her pregnancy. The Board is sympathetic to the concerns that have been voiced that include the appellant's belief that she is not adequately compensated for the symptoms of her psychiatric disorder. While the appellant is competent to report her symptoms, she lacks sufficient medical training and expertise to make the requisite clinical findings under the relevant rating criteria. Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The objective, competent medical evidence discussed above are more probative than the appellant's lay statements in establishing her specific level of symptomatology and impairment. The weight of the evidence is against a finding that the appellant's symptoms have manifested as social and occupational impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood prior to November 8, 2023. The Board concludes that a rating in excess of 50 percent prior to November 8, 2023 for PTSD is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence persuasively weighs against a rating in excess of 50 percent for the appellant's PTSD prior to November 8, 2023, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. From November 8, 2023, entitlement to an increased disability rating in excess of 70 percent for posttraumatic stress disorder For the period from November 8, 2023, while the evidence supports a finding that the Veteran's service-connected psychiatric disorder resulted in occupational and social impairment with deficiencies in most areas, it does not support total social and occupational impairment. 38 C.F.R. § 4.7. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008). Here, the November 2023 VA C&P examiner's opinion regarding the appellant's occupational and social impairment was based on a review of the appellant's record and is accompanied by a sufficient explanation as to why the Veteran's PTSD was manifested in deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. (Continued on the next page) ? The evidence does not reflect that a 100 percent rating is warranted. The evidence does not indicate that the Veteran exhibited persistent impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own names. Accordingly, as total occupational and social impairment is not shown and the criteria for a 100 percent schedular evaluation are not met. In sum, the Board concludes that based on the symptomatology described in the evidence of record entitlement to an increased rating in excess of 70 percent for the appellant's PTSD from November 8, 2023 is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence persuasively weighs against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). RAY BARTO SLABBEKORN, JR. Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Koottappillil 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.