Citation Nr: 24016296 Decision Date: 04/16/24 Archive Date: 04/16/24 DOCKET NO. 19-05 191 DATE: April 16, 2024 ORDER Throughout the entire period on appeal, entitlement to an increased 70 percent disability rating, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, during the relevant period, the Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most areas, but not of total occupational and social impairment. CONCLUSION OF LAW During the entire appeal period, the criteria for entitlement to a rating of 70 percent, but no higher, for PTSD, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1982 to June 1986. This matter comes before the Board of Veteran's Appeals (Board) on appeal of an October 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) denying an increase in the rating for PTSD, then rated at 50 percent, and denying entitlement for a total disability rating based upon individual unemployability (TDIU). In March 2023, the Board issued a Remand of the issues of entitlement to an increased rating for PTSD and entitlement for TDIU as well as claims for service connection for asthma and chronic obstructive pulmonary disease (COPD), instructing the Agency of Original Jurisdiction (AOJ) to reconsider the claims in light of new evidence received since its January 2019 Statement of the Case (SOC) and to issue a Supplemental Statement of the Case (SSOC). Following the Remand to the AOJ, a rating decision was issued in December 2023 granting entitlement to TDIU, effective June 30, 2016, which covers the span of the entire rating period, and granted entitlement to service connection for asthma with COPD, and assigned a 30 percent rating, effective June 26, 2018. As these issues have been resolved by a full grant of benefits, and the Veteran has not submitted any documents indicating that he is not satisfied with these decisions, the Board finds that such issues are no longer part of the current appeal. With respect to the issue of entitlement for an increased rating for PTSD, in February 2024, the AOJ issued an SSOC, indicating that the additional evidence identified in the March 2023 Board decision had been considered, but that the rating for PTSD would be continued at 50 percent. Entitlement to an increased disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. The Veteran requested an increase in his disability rating for his service connected PTSD, rated at 50 percent, asserting that he suffered occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, which were characterized by symptoms including: difficulty securing and maintaining full-time gainful employment; trouble with interacting appropriately with coworkers and supervisors in a work setting; problems with regulating and managing his mood; difficulty establishing and maintaining relationships with others, such as friends and family; demonstrating poor impulse control related to use of pornography; difficulties with memory and concentration; problems with motivation and task completion, including activities of daily living; and persistent sleep disturbances. See e.g., September 2017 Statement in Support of Claim; November 2017 Disability Benefits Questionnaire (DBQ) from Dr. F.P; January 2019 VA Form 9; and July 2020 Informal Hearing Presentation. Affording the Veteran the benefit of the doubt, the Board finds that the evidence more closely approximates the criteria for occupational and social impairment with deficiencies in most areas, consistent with a 70 percent disability rating, but that it does not suggest the total occupational and social impairment that is contemplated in a 100 percent rating. When making disability evaluations, the Veteran's entire history is to be considered. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When all the evidence is assembled, VA is responsible for determining whether the weight of the evidence is in approximate balance. If the positive and negative evidence is evenly or approximately balanced, the claimant receives the benefit of the doubt. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application); 38 C.F.R. § 4.3. As relevant to this claim, to assign a disability rating of 50 percent under DC 9411, the evidence needs to show symptoms manifested by 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, and difficulty in establishing and maintaining effective work and social relationships. To assign a disability rating of 70 percent under DC 9411, the evidence needs to show occupational and social impairment with deficiencies in most areas, 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. To assign a disability rating of 100 percent rating under DC 9411, the evidence needs to show symptoms manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process 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, and memory loss for names of close relatives, own occupation, or own name. The psychiatric symptoms listed in the rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. See Mauerhan v. Principi,16 Vet. App. 436 (2002). Because the symptoms enumerated in 38C.F.R. §4.130 are not an exhaustive list, the Board must consider all the evidence of record related to the Veteran's service-connected disability that impacts his occupational and social functioning and assign a disability rating that most closely reflects the level of occupational and social impairment. See Mauerhan,16 Vet. App. at 440-41; Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) (requiring VA to "engage in a holistic analysis" of the Veteran's symptoms to determine the proper disability rating.) This evaluation is symptom-driven, and a Veteran may only qualify for a given disability rating under section 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki,713 F.3d 112, 116-17 (Fed. Cir. 2013). Turning to the evidence of record, both VA examinations and mental health treatment records show that Veteran had a diagnosis of PTSD, related to his military service, which including a history of military sexual trauma and that he experienced persistent symptoms associated with this diagnosis, including depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances in mood and motivation; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including a work or worklike setting, which essentially impacted his occupational and social abilities in most areas of functioning. See December 2016, July 2017, and September 2023 VA examinations; VA treatment records from September 2017 to December 2019, February to May 2020 and February to July 2021; and November 2017 DBQ from Dr. F.P. For example, VA treatment records show that the Veteran reported ongoing issues with his sleep, including nightmares associated with his PTSD, as well as episodes of thrashing around and/or fighting in his sleep, to the point that his wife was afraid to sleep in the bed with him. See VA treatment records, August 2019, September 2019, March 2020, May 2020, February 2021; July 2017 VA examination. These chronic sleep issues also impacted the Veteran's mood, resulting in irritability and mood swings, impacting his social relationships. For example, the Veteran reported having difficult relationships with his adult stepchildren and grand children and at times conflicts with his wife. See Va Treatment records; July 2017 and September 2023 VA examinations; November 2017 DBQ from Dr. F.P.; November 2016 and January 2019 Lay Statements from wife. He also admitted to problems trusting other people, reporting that he did not really have any friends or close personal relationships outside of his family or his pastor. See Va Treatment records; July 2017 and September 2023 VA examinations; November 2017 DBQ from Dr. F.P. Lay statements from the Veteran's Wife and friend indicated that the Veteran often isolated himself from others, declining to participate in social or family events, and that he would flinch when touched. See November 2016 Lay Statements. This is evidence of significant deficiencies in the Veteran's mood and his social functioning, supporting a 70 percent rating. The Veteran's PTSD also impacts his occupational functioning, limiting his ability to secure and maintain consistent employment. The Veteran's social issues, including distrust of others, tendency to isolate himself, and problems with authority made it difficult for him to relate appropriately to coworkers and supervisors in a work setting. See June 2021 VA Treatment Record; December 2016, July 2017, September 2017 VA Examinations; November 2016 and January 2019 Lay Statement from wife. Irritability, outbursts, and hypervigilance limited his ability to adapt to ordinary stress, such as could be expected in a work environment. See VA Treatment records; July 2017 and September 2023 VA examinations; November 2017 DBQ from Dr. F.P.; November 2016 and January 2019 Lay Statements from wife. The Veteran also had issues with impulsive behavior, namely addiction to pornography, which ultimately caused his termination from his job at the VA Medical Center in Chillicothe. See Statement in Support of Claim March 2017; VA treatment Records August-December 2017, February and July 2018, September 2019, February 2020; July 2017 VA examination; November 2017 DBQ from Dr. F.P.; January 2019 Wife Lay Statement. Additionally, ongoing problems with sleep and mood impacted his memory, concentration, and task focus, further limiting his ability to sustain the persistence and pace of competitive work. See September 2023 VA examinations; November 2017 DBQ from Dr. F.P.; and January 2019 Lay Statement from wife. During the period on appeal, the Veteran worked primarily part-time or not at all, with the exception of the period in which he worked at the VA Medical Center, from which he was ultimately terminated due to his compulsive behavior. See March 2017 and August 2023 VA Forms 21-8940 Application for Increased Compensation Based Upon Unemployability; and December 2023 Rating Decision. This is evidence of significant deficiencies in occupational functioning, further supporting the 70 percent rating. In making these findings, the Board also considered the various medical opinions rendered in this case. Dr. F.P. the Veteran's psychiatric provider, submitted a DBQ in November 2017, indicating that the Veteran suffered from PTSD and Depression, with symptoms of depressed mood; anxiety; suspiciousness; near continuous panic or depression affecting the ability to function independently and appropriately; chronic sleep impairment; mild memory loss; impairment of short and long term memory; memory loss for names of relatives or occupation; flattened affect; speech intermittently illogical; obscure or irrelevant; difficulty in understanding complex commands; impaired judgment; disturbances in mood and motivation; difficulty in establishing or maintaining effective work and social relationships; inability to establish and maintain effective social relationships; suicidal ideation; impaired impulse control; neglect of physical appearance and hygiene; intermittent inability to perform activities of daily living; and disorientation to time and place. See November 2017 DBQ by Dr. F.P. He indicated that it was possible to distinguish between the PTSD and depression symptoms, attributing the symptoms primarily (60 percent) to the PTSD and secondarily (40 percent) to depression. See Id. In terms of severity, he opined that the symptoms were suggestive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, which would be consistent with the criteria for a 70 percent rating. See Id. Finally, in response to an assessment in July 2017 by a VA examiner's, that the Veteran's contentions that his pornography addiction was related to his military sexual trauma were "preposterous," Dr. F.P. disagreed, noting medical research which suggested that sexually compulsivity, such as acting out sexually, could be linked to sexual trauma. See Id. These opinions were afforded significant probative weight, particularly as to the degree of occupational and social impairment, as they were well supported by his own treatment records of the Veteran, as well as the VA examinations, which showed persistent complaints regarding mood, social functioning, and difficulty maintaining consistent employment. See VA treatment Records; VA Examinations. However, the Board did not distinguish between the symptoms of PTSD and Dr. F.P.'s other noted diagnosis of depressive disorder, as the various VA examiners did not find a separate diagnosis of depression or anxiety, instead noting that the depressive and anxious type symptoms were part of the Veteran's PTSD, suggesting that there was an overlay within his symptoms. Therefore, the Board did not assign any percentage of disability to depression or any other non-service-connected mental health condition. The Veteran was also afforded three VA examinations during the pendency of this claim, who also provided medical opinions. At the first examination, in December 2016, the examiner indicated a diagnosis of PTSD, with symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. See December 2016 VA examination. The examiner opined that the Veteran's PTSD was more likely than not related to his military service, establishing service connection for this condition, but did not provide an opinion as to the severity of his symptoms. In the second VA examination, conducted in July 2017, the examiner indicated that same symptoms as the prior examiner, but suggested that the Veteran's PTSD was primarily attributable to witnessing a suicide of a fellow service member, rather than military sexual trauma. See July 2017 VA examination. The examiner opined that the Veteran's contention that his pornography addiction was associated with his sexual trauma as a method of "self-medicating" was "preposterous and rather self-serving," indicating that the Veteran would not be precluded from employment, as he could seek jobs where internet use was restricted or unnecessary. In terms of severity, the July 2017 VA examiner found that the Veteran's symptoms were indicative of "occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication." See July 2017 VA examination. In the most recent VA examination, in September 2023, the examiner indicated symptoms of anxiety, suspiciousness, chronic sleep impairment, and difficulty adapting to stressful situations, such as work or work-like settings, opining that the symptoms were suggestive of 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). In terms of functional limitations, the examiner indicated that problems with fatigue, daytime sleepiness, decreased stamina, anxiety, uneasiness, and difficulty managing stress could cause difficulties with stability/consistency, pace, productivity, and performance; would avoid social interactions; and that due to triggering or avoidance of stimuli he might be unreliable or absent from work. See September 2023 VA Examination. The examiner noted that such limitations would be present in sedentary or more active work environments. See Id. The aforementioned VA examinations were considered but not given significant probative weight in terms of the assessment of severity of the Veteran's symptoms over the relevant period, as the medical evidence of record supports greater overall limitations than those suggested by these examiners. For example, the Veteran consistently suffered from problems with mood, social interactions, and maintaining consistent employment, symptoms that could neither be considered "mild" nor "transient" as suggested by the July 2017 VA examination, nor were they indicative of only occasional decrease in work efficiency, with overall generally satisfactory task performance, as suggested by the most recent examiner. See VA treatment records; December 2016, July 2017, and August 2023 VA Examinations; March 2017 and August 2023 VA Forms 21-8940 Application for Increased Compensation Based Upon Unemployability; and December 2023 Rating Decision. Additionally, with respect to the July 2017 examiner's opinion that the Veteran's assertions of connection between his military sexual trauma and pornography addiction were preposterous, the Board notes that this examiner did not cite to any medical literature or research to support such position, unlike Dr. F.P. who provided citations to support his contrary opinion. The Board also notes that there were opinions afforded on behalf of medical consultants for the Social Security Administration regarding functional limitations in accordance with his application for Social Security Disability benefits. Those consultants noted limitations in the abilities to understand, remember and apply information, particularly complex or multistep tasks; concentrate, persist, and maintain pace to completion of tasks; interact with others; and adapt and manage oneself, particularly in a work setting, providing specific functional limitations in accordance with Social Security program criteria. See Social Security Administration Records. These opinions suggest significant functional limitations impacting the Veteran's overall occupational and social functioning, which is consistent with the findings herein. The Board has also considered whether the next higher rating for PTSD, 100 percent disability, would be appropriate, but did not find the evidence to suggest a total impairment in occupational and social functioning necessary to justify such rating. For example, with respect to social functioning, although the Veteran did have significant social difficulties including problems trusting others, feeling as if he were being persecuted or ridiculed by others, and reported issues with getting along with family members and authority figures, there was no indication in the record that the Veteran had any legal altercations, such as arrests or civil actions during the relevant period, or that he required any hospitalizations for mental health issues, suggestive of periods of decompensation. See VA treatment records; December 2016, July 2017, and August 2023 VA Examinations. Further, although the Veteran reported tendency toward irritability and snappiness fairly consistently, he generally presented as cooperative and pleasant on examinations, with no indication of aggressive, combative, or inappropriate behavior observed. Id. Finally, there was no evidence of any homicidal ideations, violent thoughts, or plans, or suggestion that the Veteran was believed to be a danger to himself or others. Id. As far as his occupational functioning, while the Veteran did demonstrate significant problems in this area, and ultimately lost the only full-time job he had during the period at issue, it is noteworthy that he was able to secure and to maintain that job for about a year before his termination. Further, while the Veteran did report that he had issues with supervisors and getting along with co-workers, he did not provide any anecdotal evidence that he had ever been disciplined or terminated due to any types of conflicts or altercations in the workplace, as would be expected in the case of total occupational impairment. His exams did not show any persistent delusions, hallucinations, or psychotic thought processes, nor any significant impairment in his cognitive functioning. See VA treatment records; December 2016, July 2017, and August 2023 VA Examinations. The evidence does not show symptoms of gross impairment in thought process 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, and memory loss for names of close relatives, own occupation, or own name. Overall, the evidence simply does not support the degree of limitation indicative of a 100 percent rating due to lack of evidence that would suggest a total impairment in social and/or occupational functioning. In sum, the evidence shows significant limitations in most areas of social and occupational functioning, including social difficulties, including social avoidance and conflict with family members; problems with mood regulation, reporting irritability and snappiness; persistent sleep difficulties, including fighting or lashing out in his sleep to the point that it was causing difficulties for his wife; compulsive behavior, including addiction to pornography, impacting his marriage and costing him his job; and difficulties maintaining consistent gainful employment, most consistent with a 70 percent disability rating. Therefore, the Veteran is entitled to an increased rating to 70 percent, but no greater, for the period on appeal. Lesley Rein Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fuller, L. 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.