Citation Nr: 25005246 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 19-23 175 DATE: April 17, 2025 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to April 30, 2019, is denied. FINDING OF FACT Prior to April 30, 2019, a psychiatric disability was productive of occupational and social impairment with reduced reliability and productivity; but not occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; or total social and occupational impairment. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with anxiety disorder, prior to April 30, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1988 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision issued by a Regional Office of the Department of Veterans Affairs (VA), which is the Agency of Original Jurisdiction (AOJ). An October 2019 Board decision denied entitlement to a rating in excess of 50 percent for PTSD prior to April 30, 2019. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims. In September 2020, the Court granted a Joint Motion for Partial Remand, vacating the portions of the October 2019 Board decision denying entitlement to a rating in excess of 50 percent for PTSD prior to April 30, 2019, and remanding the matter for further appellate consideration. An August 2021 Board decision again denied entitlement to a rating in excess of 50 percent prior to April 30, 2019, for PTSD. The Veteran appealed the August 2021 Board decision to the Court. In April 2022, the Court granted a Joint Motion for Remand, vacating the August 2021 Board decision denying entitlement to a rating in excess of 50 percent for PTSD prior to April 30, 2019, and remanding the case for further appellate consideration. In August 2022, August 2023, and October 2024, the Board again remanded the matter for further development by the AOJ. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to April 30, 2019. Service-connected posttraumatic stress disorder (PTSD) has been rated under the provisions of Diagnostic Code 9411, using the General Rating Formula for Mental Disorders. Under the provisions of Diagnostic Code 9411 and the General Rating Formula for Mental Disorders, a 30 percent rating is warranted for 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), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 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 work like setting); 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. The symptoms listed in the General Rating Formula for Mental Disorders 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). Considerations in rating a mental disorder include 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 must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Posttraumatic stress disorder (PTSD) is currently assigned a 70 percent rating, effective April 30, 2019, pursuant to Diagnostic Code 9411. Prior April 30, 2019, and as of January 25, 2012, PTSD was assigned a 50 percent rating. The claim for an increased rating stems from a January 2017 filing. The April 2022 Joint Motion for Partial Remand addressed only the claim for a rating in excess of 50 percent for PTSD prior to April 30, 2019. Therefore, the period currently on appeal is from January 20, 2017, the date of claim filing, to April 30, 2019. The Board may also consider whether an increase in disability is shown within the one year prior to the filing of the claim for increase. 38 C.F.R. § 3.400(o). The Veteran contends that the rating assigned for a service-connected psychiatric disability does not accurately compensate the severity of the psychiatric disability, and that higher ratings are warranted. After review of the relevant medical and lay evidence of record, resolving reasonable doubt in favor of the Veteran, the Board finds that the psychiatric disability was productive of occupational and social impairment with reduced reliability and productivity. Therefore, the Board finds that, during the course of this appeal, the psychiatric disability has warranted no more than a 50 percent rating. Therefore, the claim for a rating in excess of 50 percent for a psychiatric disability must be denied. A review of the post-service VA treatment records notes, complaints, and treatment for PTSD symptomology. VA depression and alcohol screening tests conducted in June 2016 were negative, based on the Veteran's self-reported history. A December 2016 VA treatment record noted that the Veteran was experiencing depression, but denied suicidal ideation. A March 2017 VA treatment record noted the Veteran experiencing the full range of affect and denied suicidal or homicidal ideation. At a March 2017 VA examination, the examiner diagnosed PTSD. The Veteran reported being in a dating relationship for approximately six months and having good relationships with his adult children. The Veteran was close to his mother and three out of four of his sisters. The Veteran reported spending time and keeping in touch with friends. The Veteran reported being employed for the Federal Bureau of Prisons for 24 years with no problems on the job. The Veteran denied any substance use or abuse. The following symptoms were found to apply to the Veteran's diagnosis: anxiety, hyper alertness, feelings of detachment from others and chronic sleep impairment. The examiner found that the psychiatric symptomology led to occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examiner described the PTSD as quiescent. A September 2017 VA treatment record noted the Veteran's report from his co-workers that he was irritable and raising his voice, which prompted him to take a three week vacation to relax. The Veteran described his mood as up and down. The Veteran also reported feeling relaxed most of the time and was able to not worry about other people not doing their jobs at work. However, he endorsed feeling stressed or anxious at other times. An October 2017 VA treatment record noted the Veteran feeling a little better and that he had been working on his triggers. He also reported undertaking multiple tasks in order to have less time to think about stressful events. A November 2017 VA treatment record noted the Veteran experiencing an improved attitude. He also discussed having enjoyed visiting his mother and all his family to celebrate her 86th birthday. At September 2017, October 2017, and November 2017 VA mental health treatment appointments, the Veteran's mental status was examined at each session. The Veteran was found to be alert and oriented. His appearance was described as reasonable, and he was cooperative. Speech was found to be normal in rate and rhythm. Mood was described as appropriate and anxious with a congruent affect. Thought process was observed to be normal and coherent. No unusual thought content was observed. Insight was found to be fair. Judgment was found to be good. The Veteran denied suicidal ideation, homicidal ideation, or aggressive thoughts. In April 2018, the Veteran's fiancé provided a written statement describing the Veteran's PTSD symptoms. She reported the Veteran was paranoid, anxious, moody, and irritable. When he was in a depressive state, he became withdrawn and argumentative. Although he was a social person, he isolated himself at events. She also reiterated that the Veteran had issues sleeping and was hypervigilant. In a June 2021 VA medical opinion, the examiner characterized the severity of the Veteran's PTSD from January 2016 to April 2019 as mild and also as occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally functioning satisfactory with normal routine behavior. The examiner noted that the Veteran continued to work in a supervisory role with the Department of Corrections without interruption from 1993 to the present. The examiner also noted that the Veteran had not engaged in mental health treatment for the last several years. The Veteran was not currently taking medication or engaging in psychotherapy. The examiner found that the Veteran had adequate social support and reported that he returned from international travel with a group of friends. The examiner found that it was reasonable to assume that the Veteran's activities of daily living had not deteriorated and that his independent functioning during this time period was similar to his current reports. The Veteran reported being capable of grooming, dressing, hygiene, cooking meals, cleaning, fixing electrical and plumbing issues for other people, and enjoying traveling for leisure. The Veteran submitted a September 2021 statement that was received in October 2021. The Veteran stated that he experienced the following mental health symptoms: anger, anxiety, chronic sleep problems, confusion, depression, difficulty making decisions, drug or alcohol abuse, emotional numbing, flashbacks, hypervigilance, inability to make or keep friends, isolation, lack of emotion, lack of friends, little interest in activities or hobbies he once enjoyed, low motivation, neglect of chores or tasks, neglect of family, problems with communication, problems at work, problems getting along with people, sexual dysfunction, suspiciousness, unable to share feelings, and standoffish. The Veteran reported that he was very confused at times on a daily basis as to what his activities should be, and that he planned his day around avoiding PTSD triggers. Most of the day he spent at home alone. An individual submitted a September 2021 statement received by VA in October 2021 in which the Veteran was described as having an inability to focus, share his feelings, and always feeling like he has to be in control. The Veteran jumped quickly from one task to the next without completing the first task. The Veteran did not sleep well, and checked regularly to ensure that the home was safe. The Veteran was easily triggered by the actions of others. The Veteran submitted an additional September 2021 statement received by VA in October 2021. The Veteran stated that he retired on August 28, 2021, because he could no longer function at work, and that he has problems adapting and feeling himself losing control over his emotions. The Veteran did not attend yearly training at work due to the lack of interest in being around people. The Veteran stated his military way of living got in the way of relationships. The Veteran only had friends that lived in other states. The Veteran stated that he took a long time to complete tasks, and chores were put off to later dates. The Veteran did not fit in well with crowds, because of fear that something would happen. The Veteran was more reactive than proactive, so he avoided conflict. The Veteran liked to tear things down or remodel things, and he preferred to engage in that hobby alone. An October 2022 retrospective VA medical opinion was issued to address the severity of the Veteran's PTSD from January 20, 2016, to April 30, 2019. The examiner stated that the severity of the Veteran's PTSD during that time was characterized as averaging as occupational and social impairment with reduced reliability and productivity. The examiner noted variations over that time period, as symptoms of PTSD can increase and subside depending on particular stressors and triggers. During the appeal period, the Veteran consistently reported PTSD symptoms to primary care and specialist medical providers. He was referred to mental health treatment, but no consistent mental health treatment was noted. During that time, the Veteran apparently attended the Vet Center. The Veteran had a series of appointments in 2017 as work stress exacerbated his symptoms. At work, the Veteran received comments from coworkers and superiors regarding his irritability and took three weeks off. The Veteran attended sleep medicine and sleep psychology appointments from September to November 2016 to 2017. At that time, nightmares and PTSD symptoms were affecting the Veteran's sleep. The examiner noted that the April 2019 VA examination noted occupational and social impairment with deficiencies in most areas. The examiner stated that there was no apparent cause to doubt the Veteran's assertion of being in an off and on relationship with a woman, and elaborated that the Veteran had previously stated that he had been dating someone for six months in March 2017 and later stated that he was living with his girlfriend in April 2019. The examiner stated that there was no reason to believe that the Veteran's statement that he had been cohabitating with someone off and on was not true. A December 2023 VA medical examination rated the severity of the Veteran's PTSD as not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran reported that he had been married for one month to a woman with whom he had had an off and on relationship for seven to eight years. The Veteran reported that he had somewhat good relationships with his son and daughter. The Veteran stated he had retired in 2021 because he was triggered by the actions of others at work. The examiner did not opine on the severity of the Veteran's PTSD during the appeal period. A January 2025 VA retrospective medical opinion concluded that, during the appeal period, the Veteran did not have total occupational and social impairment due to a psychiatric disability, and did not have occupational and social impairment with deficiencies in most areas due to a psychiatric disability. As rationale, the examiner stated that the Veteran worked at a federal penitentiary from January 2016 to April 2019. From March 2016 to January 2017, the Veteran received a sleep medicine diagnosis of PTSD and was referred to mental health. The examiner noted that the Veteran reported increased anxiety and irritability and took three weeks off in response. With respect to the nature of the Veteran's romantic relationships during the appeal period, the examiner reported that the Veteran and his current wife began dating while living in different states in December 2015. She then moved to into the Veteran's home in August 2016. The Veteran married that woman in November 2023. The Veteran stated that the on-again, off-again aspect of the relationship that was previously reported referred exclusively to a temporary period of time in 2020 in which his future wife moved out into her own apartment. The examiner concurred with the June 2021 VA medical opinion with respect to the characterization of the Veteran's PTSD symptoms as mild and as occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally functioning satisfactory with normal routine behavior. The examiner also concurred with the June 2021 VA medical opinion as to its rationale that the Veteran was engaged in a romantic relationship from 2016 to 2019 and that the Veteran's activities of daily living had not deteriorated and his independent functioning from 2016 to 2019 was similar to his current level of functioning. With respect to the Board remand requesting that the AOJ attempt to obtain the Veteran's Vet Center records, the Board finds that the AOJ has substantially complied. An October 2024 letter sent to the Veteran's address of record requested that the Veteran complete VA Form 21-4142 and VA Form 21-4142a so that the AOJ could obtain the requested records. The record does not show evidence that the Veteran responded to this letter. In addition to the October 2024 letter, the AOJ also sent letters requesting that the Veteran complete the necessary forms to obtain Vet Center records in May 2024, August 2023, and March 2021. Again, the record contains no evidence that the Veteran responded to these letters. While VA has a statutory duty to assist in developing evidence pertinent to a claim, a Veteran also has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist a Veteran in developing a claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565 (2008). Therefore, remand for an additional VA examination is not warranted. With respect to the Board remand request that the examiner note the Veteran's anxiety and irritation with other people during the appeal period, the Board finds that the AOJ has substantially complied. The January 2025 VA examiner noted more than once that the Veteran reported increased anxiety and irritability and took three weeks off of work in response to these feelings. With respect to the Board remand directive that the examiner address the nature of the Veteran's romantic relationship from January 2016 to April 2019, the Board finds that the AOJ has substantially complied. The January 2025 examiner resolved this question when the Veteran clarified that he began a relationship with the woman that would later become his wife in December 2015, that they began cohabitating in August 2016, and that they were only separated once, temporarily, in 2020, after the appeal period. After thorough review of the claims file and resolving reasonable doubt in favor of the Veteran, the Board finds that the psychiatric disability warranted no more than a 50 percent rating during the period under consideration prior to April 30, 2019. The Board finds that the psychiatric condition did not meet, or more nearly approximate, the criteria for a 70 percent rating or higher during the appeal period. Throughout the period on appeal, January 20, 2017, to April 30, 2019, the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as anxiety, chronic sleep impairment, and irritability, but without unprovoked irritability with periods of violence. The Board finds that the criteria for the next higher 70 percent rating are not demonstrated by the evidence of record, as the Veteran has not been shown to have or ever have 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; spatial disorientation; neglect of personal appearance and hygiene; or an inability to establish and maintain effective relationships. The Veteran has maintained a lengthy romantic relationship that later became a marriage and was only briefly interrupted in 2020, outside of the appeal period. The Veteran was consistently employed during the appeal period, only retiring in 2021. The Veteran also maintained social relationships with friends and with his children. Therefore, the Veteran cannot be found to have deficiencies in family areas. The Board further notes that, of the VA medical examinations and opinions from March 2017, April 2019, June 2021, October 2022, December 2023, and January 2025, only the April 2019 VA examiner showed the Veteran to have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The opinions of the March 2017, June 2021, October 2022, and January 2025 VA examiners are persuasive in finding that during the appeal period, the Veteran's PTSD did not manifest with occupational and social impairment in most areas, and is consistent with the evidence of record and the Veteran's self-report of symptoms. Therefore, the weight of the evidence is against a finding that the Veteran's PTSD manifested by occupational and social impairment in most areas. While the record shows the Veteran experienced anxiety, chronic sleep impairment, and irritability, the Board finds that the overall level of impairment does not constitute deficiencies in most areas. Therefore, the Board finds that a 70 percent rating is not warranted pursuant to Diagnostic Code 9411 during the period on appeal. The Board finds that, while the symptoms listed in the General Rating Formula for Mental Disorders 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, the Veteran's overall disability picture is more nearly approximates by the criteria for a 50 percent rating, pursuant to Diagnostic Code 9411, during the appeal period. The Board finds that total occupational and social impairment have not been shown during the course of the appeal. There is significant evidence of maintained familial relationships, which precludes a finding of total social impairment. The record indicates that the Veteran had continuously been in a romantic relationship during the appeal period and continued a positive relationship with his children. Additionally, the record indicates that the Veteran was employed throughout the appeal period. The evidence does not show that the Veteran was a persistent danger of harming himself or others. Therefore, as both total occupational impairment and social impairment are required for a 100 percent schedular rating, the Board finds that a 100 percent schedular rating is not warranted at any point during the course of this appeal as total social impairment has not been shown. The Board also notes that no examiner has ever found the Veteran to display gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; or persistent danger of hurting others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name, commensurate with the criteria for a 100 percent rating. In considering whether the Veteran was entitled to a higher rating, the Board has carefully considered the contentions and assertions that a psychiatric disability was of such severity so as to warrant increased schedular ratings. In making a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which is found to be persuasive or unpersuasive and provide the reasons for the rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is competent to report symptoms such as anxiety and depressed mood because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the overall disability picture does not demonstrate symptoms that more nearly approximate a higher rating under the General Rating Formula for Mental Disorders. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for entitlement to a rating in excess of 50 percent for posttraumatic stress disorder with anxiety disorder, prior to April 30, 2019, have not been met. The Board finds that the weight of the evidence is against the assignment of any higher ratings. The Board finds that the evidence is not in approximate balance, the criteria for a higher rating are not met or more nearly approximated, and there is no reasonable doubt to resolve in favor of the Veteran. The Board is appreciative of the Veteran's faithful and honorable service. However, as the weight of the evidence is against the claim for an increased rating for PTSD during the period on appeal, the claim for an increased rating must be denied. 38 U.S.C. § 5107 (b). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gernand, 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.