Citation Nr: 24010487 Decision Date: 03/05/24 Archive Date: 03/05/24 DOCKET NO. 19-28 213 DATE: March 5, 2024 ORDER Entitlement to a rating in excess of 50 percent from January 10, 2017, to October 17, 2019, for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT Throughout the appeal period, the Veteran's PTSD most nearly approximated occupational and social impairment with reduced reliability and productivity; the Veteran's PTSD did not manifest by occupational and social impairment with deficiencies in most areas. Although he experienced suicidal ideation which was noted to be passive, this symptom, coupled with his other symptoms, were not of the severity and frequency to cause occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 50 percent from January 10, 2017, to October 17, 2019, for PTSD 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 FINDING AND CONCLUSION The Veteran had active duty service in the United States Marine Corps from July 1991 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). By way of background, the Veteran initially filed a claim for service connection for PTSD in January 2005, which was denied. The Veteran timely appealed that decision, and the Board denied his appeal in November 2007. That decision was final on the date of issuance and the Veteran did not appeal. The Veteran submitted an intent to file a new claim for service connection for PTSD on January 10, 2017, and timely submitted his formal claim. The AOJ then issued an April 2018 rating decision granting service connection for PTSD with a 50 percent disability rating as of January 10, 2017, and the Veteran timely filed a Notice of Disagreement (NOD). The AOJ then issued a subsequent rating decision on October 16, 2019, which increased the Veteran's disability rating to 100 percent as of October 7, 2019. An August 2023 Board decision remanded the issue of entitlement to an initial rating higher than 50 percent from January 10, 2017, to October 17, 2019, for PTSD. In its remand, the Board noted the limited evidence in the record as to the Veteran's symptoms from January 10, 2017, to October 17, 2019, and in its remand directives, ordered (1) for the VA to obtain releases from the Veteran to request his private mental health treatment records from 2007 to present and (2) to obtain VA medical records from September 2022 to present. That development having been completed to the extent possible, the matters are again before the Board for appellate review. The Board finds VA has substantially complied with the August 2023 remand directives. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). Following the Board's remand, the VA sent the Veteran development letters on August 21, 2023, and November 27, 2023, asking him to submit and/or specify evidence to support his appeal. To date, the Veteran has neither responded nor provided additional medical evidence. The Board notes that the Veteran has not raised the issue of a total disability rating based on individual unemployability (TDIU) nor has it been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). PTSD is the Veteran's only service-connected disability. All the evidence of record suggests the Veteran was gainfully employed as a fireman until he suffered a severe workplace injury affecting his back in 2007. The Veteran has not worked since 2007 due to this back injury; it has required at least six surgeries in the past decade and causes him chronic pain. See March 2018 VA Examination. Entitlement to a rating in excess of 50 percent from January 10, 2017, to October 17, 2019, for PTSD. The Veteran contends that he is entitled to a 100 percent rating effective January 10, 2017. The schedule for rating psychiatric disabilities, provide a 50 percent rating is warranted 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. A 70 percent rating is warranted for 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); and an inability to establish and maintain effective relationships. 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 (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The use of the term "such as" 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In determining whether a 70 percent rating is warranted, the focus is on whether there are deficiencies in most of the areas of work, school, family relations, judgement, thinking and mood. Bowling v. Principi, 15 Vet. App. 1 (2001). Although a veteran's symptomatology is the primary consideration in assessing a veteran's disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in "most areas" for the 70 percent rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); 38 C.F.R. § 4.130. In Bankhead, citing from various sources, the Court first looked at how the term "suicidal ideation" is defined. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). The Court summed it up stating that "both passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death." Id. at 20. In applying the meaning of suicidal ideation to the rating criteria, the Court noted that suicidal ideation is only listed as a symptom in the criteria for a 70 percent disability rating. Id. There are no analogues at the lower evaluation levels and there are no descriptors, modifiers or indicators as to suicidal ideation in the 70 percent criteria (including no specific mention of "active" suicidal ideation, "passive" suicidal ideation, suicidal "intent," suicidal "plan," suicidal "preparatory behavior," hospitalization, or past suicide attempts). Id. Thus, the Court found "the language of the regulation indicates that the presence of suicidal ideation, alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Id. The Court then turned to the specifics of the case in Bankhead. The Court found that, insofar as the Board required evidence of more than thought or thoughts to establish the symptom of suicidal ideation, it erred. Id. at 20. The Court found that the Board erroneously grafted the risk of self-harm onto the symptom of suicidal ideation in the criteria for a 70 percent evaluation. In other words, a veteran need not be at a risk, whether a high or low risk, of self-harm to establish the criteria of suicidal ideation. Id. at 20-21. The Court also found that the Board erred in applying "hospitalization" as the standard for assessing the severity of that symptom. Id. at 21. Rather, the evaluation of mental disorders requires consideration of the effects of each of the veteran's mental symptoms on his or her social and occupational situation to determine the severity of the symptom. Id. Put differently, although suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas, it does not follow that suicidal ideation automatically warrants a 70 percent disability rating. The focus is on whether those suicidal ideations and his other symptoms are of the severity and frequency to cause occupational and social impairment with deficiencies in most areas. As mentioned above, evidence of the Veteran's PTSD symptoms from January 10, 2017, to October 17, 2019, is limited. However, as the Board has already remanded the issue to seek additional medical records to no avail, the Board must now adjudicate the Veteran's claim based on the evidence of record. In March 2018, a VA examiner opined the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency. The examiner reported the Veteran is married with three children. Although he described his relationship with his wife as "tumultuous," he reported he had a good relationship with his children. He also reported he has friends in the fire department, although he does not see them often, he is in contact with some of his fellow veterans on Facebook, he sees his sister occasionally, and has frequent contact with his wife's family. The examiner noted the Veteran stopped working in 2007 due to a workplace injury and, to date, that injury has continued to prevent him from working. The examiner reported the Veteran presented casually dressed and neatly groomed with clear and coherent speech, without any hallucinations, delusions, or paranoid ideation. The Veteran admitted to chronic suicidal ideation with no intent or plan. The examiner noted the Veteran suffered from depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The Veteran submitted a psychiatric progress note from May 2019 that outlined the following symptoms: anxiety, depression, logical thought processes, coherent descriptions of associations, no abnormal psychotic thoughts, intact insight and judgment, oriented to time, place, and person, fair memory recall, and some suicidal thinking that is under control. The Veteran also provided a psychological treatment summary from April 2018, covering sessions from November 2017 to April 2018. Although the treatment summary notes psychological symptoms the Veteran struggles with, the psychologist notes these are due to his back injury, its progression, and his slow recovery. The psychologist specifically refers to the Veteran's "psychological disorders from this injury," mentioning major depressive disorder and anxiety, without ever mentioning PTSD. Accordingly, the Board does not find this evidence to be probative in ascertaining the Veteran's PTSD symptoms during the appeal period. When considering all of the evidence of record, the Board finds that the Veteran's PTSD disability picture most nearly approximates occupational and social impairment with reduced reliability and productivity, which is contemplated by his currently assigned 50 percent disability rating. The Veteran has not contended, and the evidence of record does not otherwise support, that he experiences symptoms of the type and severity contemplated by the 70 percent rating, with the exception of suicidal ideations. As noted above, the Veteran has reported passive suicidal ideations. The question therefore becomes whether these suicidal ideations, along with the Veteran's other symptoms, rise to the level as to cause occupational and social impairment with deficiencies in most areas. Although the Board acknowledges that suicidal ideations alone, whether active or passive, may rise to the level of impairment contemplated by the 70 percent rating, the Board finds that in this case, they do not. The Veteran is married and enjoys good relationships with his children, sister, and wife's family. Although the Veteran has not worked since 2007, the evidence shows this was due to a workplace injury he suffered, not as a result of his PTSD symptoms. The Board's decision is by no means meant to minimize the struggles the Veteran has faced with his own PTSD. Rather, the Board notes that, from January 10, 2017, to October 17, 2019, instead of demonstrating symptoms such as intermittently illogical or obscure speech, near continuous panic or depression affecting his ability to function independently, neglect of personal appearance and hygiene, and an inability to maintain and establish effective relationships, the Veteran maintained several relationships and was noted to be appropriately groomed, with his judgment intact. There is simply not sufficient evidence, prior to October 17, 2019, to indicate the Veteran's occupational and social impairment more closely approximates deficiencies in most areas. The Board finds it highly probative that the March 2018 VA examiner determined that, even when considering the Veteran's passive suicidal ideations, the Veteran's PTSD most nearly approximated occupational and social impairment with occasional decrease in work efficiency, i.e., a 30 percent rating. This examination report was based on a complete review of the record and considered the Veteran's own statements made at the time of examination. Put differently, this examination afforded the Veteran the opportunity to fully explain the occupational and social impairments caused by his PTSD, and the examiners' findings were based on the clinical evidence of record, as well as his lay reports. The Board also notes the Veteran is already rated at a higher level of severity for his PTSD than suggested by the March 2018 VA examiner. The Board appreciates the statements and reports submitted by the Veteran and accepts them as both competent and credible evidence of the nature of the Veteran's PTSD symptoms. However, even accepting that the Veteran experiences all of these symptoms, his PTSD symptoms are not of the type, nature, severity, or frequency, as those contemplated by the 70 percent rating. Although the Veteran reported passive suicidal ideations, he does not experience these ideations on a persistent basis, and notes they are under control. These passive suicidal ideations are more consistent with impaired judgment and disturbances of motivation and mood, which are symptoms contemplated by the 50 percent disability rating currently assigned. For the foregoing reasons, the Board finds a rating higher than 50 percent for PTSD from January 10, 2017, to October 17, 2019, is not warranted. In denying the claim, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Feistritzer, 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.