Citation Nr: A25035201 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210204-135451 DATE: April 16, 2025 ORDER Entitlement to a rating in excess of 70 percent for service-connected posttraumatic stress disorder is denied. FINDING OF FACT Throughout the entire appellate period, the persuasive evidence of record shows that the Veteran's posttraumatic stress disorder most closely approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; total occupational and social impairment has not been shown at any point during the appellate period. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for posttraumatic stress disorder are not 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 in the United States Army from July 1967 to July 1969. The rating decision on appeal was issued in October 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In May 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a March 2020 decision. In October 2020, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior March 2020 decision. Therefore, the Board may only consider the evidence of record at the time of the March 2020 decision and any evidence submitted during an applicable evidentiary window. In the February 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2020 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. In a March 2023 decision, the Board granted a rating of 70 percent, but no higher, for PTSD from December 31, 2018, to November 2, 2019, and denied the claim for entitlement to a rating in excess of 70 percent disabling for PTSD since November 2, 2019. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2024 Memorandum Decision, the Court vacated the March 2023 decision to the extent that a rating higher than 70 percent for PTSD for the entire appeal period was denied and remanded the appeal for readjudication consistent with the September 2024 Memorandum Decision. Posttraumatic stress disorder The Veteran contends that his symptoms of his service-connected posttraumatic stress disorder warrant a higher disability rating. VA has adopted the Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally 38 C.F.R. Part IV. The Board determines the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 C.F.R. § 4.10. The degrees of disabilities are based on the average impairment of earning capacity and individual disabilities are assigned diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various percentage ratings for each disability and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where there is a question of which of two ratings should be applied, the higher rating will be assigned if the disability assessment more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected posttraumatic stress disorder is evaluated under the criteria of Diagnostic Code 9411, which provides that such disability is to be evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411. Pursuant to the March 2023 Board decision, the Veteran's posttraumatic stress disorder has been evaluated as 70 percent disabling since December 31, 2018. Under the General Rating Formula, a 70 percent rating is warranted when the evidence shows 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 inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. Finally, a 100 percent rating is warranted when the evidence shows 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. Id. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA 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. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA 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(b). Furthermore, when determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all or most of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, as all ratings in the General Rating Formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, supra. As such, 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, at 114-118. In a January 2019 VA treatment record, the Veteran was seen for an ongoing psychiatric evaluation and medication management. The Veteran reported no significant problems or changes in mood or sleep since his previous appointment and stated, "the medications are still working, some days better than others, still some thoughts of Vietnam but I don't talk about it around people, they wouldn't understand." The Veteran asserted to overall sleeping well with the use of prescribed Trazodone and reported back pain "from lifting and caring for my wife," as he was the primary caregiver for her. The Veteran's daughter assisted with his wife's care since she lived next door. The Veteran reported his support system was his wife, children, and brother who lived locally. The Veteran enjoyed hunting and fishing. The physician noted the Veteran was casually dressed, properly groomed, wearing glasses, a ball cap, and camouflage t-shirt and walking short, with a gray mustache and beard. There were no abnormal movements, tics, or tremors noted. The Veteran was ambulating slowly with the use of a cane. The Veteran was cooperative, alert, oriented to person, place, time, and situation with spontaneous speech and "some" anxiety. The Veteran's mood was congruent, and his thought process was logical and organized without evidence of thought disorder or delusional thinking. There was no hallucinations or paranoia. The Veteran's insight was adequate. The Veteran was afforded a VA examination in January 2019. The VA examiner diagnosed the Veteran with posttraumatic stress disorder. The VA examiner opined that the Veteran suffered from occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran asserted that he lived with his wife of fifty-two years and that his wife had a stroke and required constant care. The Veteran relied on his daughter to help him when he needed to attend a medical appointment. The Veteran had two other children. The Veteran's brother was his best friend and accompanied him to the VA examination. The Veteran had not worked since 1995 when he retired as an electrician due to his hands requiring surgery and losing his usefulness. The Veteran discussed his one-year tour in Vietnam at length as well as his medals and accommodations. The Veteran asserted that he attended posttraumatic stress disorder groups through the VA but had discontinued due to frustrations with the counselor and the group. The Veteran was prescribed Lorazepam and Trazadone by his psychiatrist at the VA. The Veteran reported that he drank "too much," noting that he used to drink daily. The Veteran asserted that he had discontinued daily drinking and said that he drank two beers a day. The Veteran's posttraumatic stress disorder symptoms included anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; and difficulty in adapting to stressful circumstances, including work or a work like setting. The VA examiner noted the Veteran arrived early for his appointment, that he was dressed casually, walked with a cane, and wore a Vietnam hat. The Veteran was noted to be fidgety and nervous. The VA examiner noted the Veteran looked at the floor and avoided eye contact. The Veteran's brother accompanied the Veteran to the appointment, and the Veteran joked and laughed with his brother. In a July 2019 VA treatment record, the Veteran was seen for an ongoing psychiatric evaluation and medication management. The Veteran asserted no significant problems or changes in mood or sleep since his previous appointment. He reported rare military related intrusive thoughts of Vietnam, and he stated, "when triggered by loud jets and helicopters" and rare military related dreams and nightmares. The Veteran asserted ongoing stress with both his and his wife's medical issues. The Veteran asserted that his wife, children, and brother were his support system, and he enjoyed hunting and fishing. The physician noted the Veteran was casually dressed, properly groomed, wearing glasses, a ball cap, and had a gray mustache and beard. There were no abnormal movements, tics, or tremors noted. The Veteran was ambulating slowly but without the use of a cane. The Veteran's behavior was cooperative, alert, oriented to person, place, time, and situation. His speech was spontaneous and there was "some" anxiety. The Veteran's mood was congruent, and his thought process was logical, organized without evidence of thought disorder or delusional thinking. The Veteran denied hallucinations or paranoia. The Veteran's insight was adequate. In an August 2019 lay statement, the Veteran's wife asserted to being married to the Veteran since December 1966. The Veteran's wife asserted that when the Veteran came back from Vietnam, he was a different man. Before Vietnam, the Veteran was friendly, would go to parties, the beach, and family cookouts, and enjoyed hunting and fishing. When the Veteran returned from Vietnam, he was no longer friendly, unable to be in a crowd due to anxiety attacks, he was unable to sleep because of nightmares, and loud noises bothered him. The Veteran's wife asserted that the Veteran never returned to the man he was prior to serving in Vietnam, that he stayed to himself and did not ask for help from anyone. The Veteran was afforded a VA examination in August 2019. The VA examiner diagnosed the Veteran with posttraumatic stress disorder. The VA examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The VA examiner noted that per a review in January, "[t]he Veteran lives with his wife of 52 years. His wife has had a stroke and requires constant care. He relies on his daughter to help him when he needs to attend a medical appointment. He as two other children. His brother is his best friend and accompanied him to the interview." The Veteran asserted that his wife had good and bad days. He remained close with his brother, who again accompanied him to his VA examination. The Veteran's daughter continued to be his helper. The Veteran's occupational history had not changed. He did not work and spent time taking care of his wife as well as attending medical appointments. The Veteran remained on Trazadone and Lorazepam. The Veteran continued to state he did not want group therapy, which was all that was offered to him at the VA. Symptoms of the Veteran's posttraumatic stress disorder include depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; and difficulty in adapting to stressful circumstances, including work or work like setting. The VA examiner noted the Veteran arrived early for his appointment, he was casually dressed, walked with a cane, and wore a Vietnam hat. The Veteran was fidgety and nervous and looked at the floor. The Veteran avoided eye contact. The Veteran's brother accompanied him, and they joked and laughed together. The Veteran was pleasant and cooperative. The Veteran was afforded a VA examination in November 2019. The VA examiner diagnosed the Veteran with posttraumatic stress disorder. The VA examiner opined that the Veteran suffered from occupational social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran had remained married since his previous VA examination and had three children. The Veteran stayed to himself and avoided crowds. The Veteran did not socialize or enjoy being around others. The Veteran had not worked since 1993. The Veteran had not completed counseling since his previous VA examination, and he continued to take Trazadone and Mirtazapine. The Veteran's posttraumatic stress disorder symptoms included a depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; difficulty in understanding complex commands; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; obsessional rituals which interfered with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The VA examiner noted the Veteran was alert and oriented to person, place, situation, and time. The Veteran's gait was remarkable for ambulating with a cane, and he did not display fine motor shakes, tremors, or any significant problems with motor function. The rate of the Veteran's observed speech was slow, and the quality of the observed speech was unremarkable. Overall, the content of the observed speech was noted to be relevant, coherent, and logical. The Veteran demonstrated adequate attention and concentration as he was able to attend to the evaluator's questions throughout the interview without distraction and was able to complete tasks of alphabetic and numeric reiteration without errors. The VA examiner noted the Veteran's mental flexibility appeared to be adequate as the Veteran was able to spell the word "world" backward and complete simple tasks of serial calculations without errors. The Veteran displayed difficulties in processing speed as evidenced by an extended amount of time required to complete the tasks presented. The VA examiner reported receptive language appeared to be adequate as the Veteran was able to complete all verbal commands presented without errors and expressive language appeared to be adequate as the Veteran was able to recall three of three words immediately after presentation and recent memory appeared to be fair as the Veteran was unable to recall any of the three words presented after a short delay. The VA examiner noted the Veteran's remote memory appeared to be adequate as the Veteran was able to recall specific details regarding past autobiographical events. The Veteran demonstrated adequate mental computation as he was able to complete basic verbal arithmetic problems without errors. The Veteran displayed fair social skills, his abstract reasoning appeared to tend towards concrete, and his judgment related to self-care and social problem-solving appeared to be adequate as evidenced by an understanding of personal safety, solution-focused ideas, and social interactions. The Veteran's insight appeared to be adequate based on the clinician's observations. The Veteran's overall intelligence was approximated as being average based on the observed vocabulary, usage, and fund of general information. His general thought processes appeared to be overly detailed, and thought form and content appeared to be obsessively focused. The Veteran denied having any history of suicidal or homicidal attempts with no suicidal or homicidal ideations at the time of the evaluation. The Veteran denied experiencing hallucinations and/or delusions presently or in the past. The VA examiner noted the Veteran's posttraumatic stress disorder affected the Veteran's ability to function in an occupational environment successfully. The Veteran's mental health symptoms created difficulty due to hypervigilance, difficulty in social situations, perceived inability to assess all threats in his environment which led to social isolation, lack of motivation, fatigue, difficulty sleeping, intrusive thoughts, flashbacks, exaggerated startle responses, and impulsivity, among other symptoms. The Veteran would likely be tired from not resting well, be unable to respond to social stimuli without incident, have difficulty with peers, have difficulty with a supervisor and corrective feedback, be tense, and not give close attention to detail. The Veteran would not likely engage in a socially appropriate context with others due to anger, impulsivity, hypersensitivity, and other symptoms. In a January 2020 VA medical record, the Veteran was seen for ongoing psychiatric evaluation and medication management. The Veteran reported no significant problems or changes in mood or sleep since his previous appointment. The Veteran stated, "I still avoid crowds, in fact, I go out of my way to avoid people." The Veteran reported rare military related dreams, and that if he was awakened during the night by one, he had to check the house and his surroundings prior to returning to sleep. The Veteran reported having a supportive family who assisted him with his wife's medical issues. The physician noted the Veteran was casually dressed, properly groomed, wearing glasses, a ball cap, and had a gray mustache and beard. There were no abnormal movements, tics, or tremors noted, and the Veteran was ambulating slowly but without difficulty without the use of a cane. The Veteran was cooperative, alert, oriented to person, place, time, and situation and his speech was spontaneous. The Veteran was anxious in crowded areas and his affect was appropriate. The Veteran's thought processes were logical, organized without evidence of thought disorder or delusional thinking, and the Veteran denied hallucinations or paranoia. The Veteran's insight was adequate. After conducting a holistic analysis and review of the Veteran's symptoms and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's symptoms have caused occupational and social impairment in most areas, and thus most nearly approximate the criteria of 70 percent that he has already been assigned. During the period on appeal, the Board finds that the record indicates the Veteran has demonstrated depression, anxiety, suspiciousness, suffering from nightmares, suffering from panic attacks more than once per week, chronic sleep impairment, mild memory loss, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, obsessional rituals, impaired impulse control, and intermittent inability to perform activities of daily living. The Board finds that the Veteran's intermittent inability to engage in activities of daily living did not rise to the frequency, severity, or duration of total social and occupational impairment. The Board acknowledges that the November 2019 VA examiner found that he had intermittent inability to engage in activities of daily living. However, aside from this medical report, the medical evidence of record otherwise demonstrated the Veteran's consistent ability to maintain adequate hygiene as he was dressed casually and properly groomed at his medical appointments. Additionally, the Veteran was able to take care of his wife who required consistent care following her stroke. The Board acknowledges the Veteran's assertion that he received help from his daughter with the needs of taking care of his wife; however, the Veteran remained his wife's primary caregiver and was able to help her with activities of daily living. The Board acknowledges that the Veteran has suffered severe deficiencies in social functioning, as he avoided crowds, did not appear to have any friends, and the November 2019 VA examination found the Veteran would be unable to respond to social stimuli without incidence and would likely not engage in a socially appropriate context with others due to anger, impulsivity, hypersensitivity, and other symptoms. However, the Board finds that the Veteran did not have total social impairment, as the Veteran was able to maintain relationships with his family members. Indeed, he consistently reported throughout the appeal period that his wife, brother and children were his support system. The Veteran's anger, impulsivity, and hypersensitivity may have caused difficulties with his relationships with his family members; however, the evidence of record does not show that any of these symptoms caused the Veteran to be totally socially impaired or isolated from his family. The Veteran served as his wife's primary caregiver along with his daughter. He also remained close to his brother as evidenced by the Veteran's assertions that his brother was his best friend and his brother accompanying the Veteran to his VA examinations during which they were laughing and joking with one another. For the reasons stated above, the Board concludes that an evaluation in excess of 70 percent is not warranted. The Board does not find that a 100 percent evaluation is warranted at any time during the appeal period. The evidence viewed from a longitudinal perspective persuasively shows that the Veteran's disability picture did not more nearly approximate the criteria for a 100 percent rating. The Veteran clearly has significant, though not total, social impairment. He has reported being isolated and avoiding people, though he maintains effective relationships with his wife, brother, and children. The Veteran has not shown severe memory loss, such as memory loss for names of close relatives, his own occupation, or his own name. The Veteran has never been found to be in persistent danger of hurting himself or others and has not shown any grossly inappropriate behavior. Moreover, the VA examiners determined that the evidence does not demonstrate the Veteran is a persistent danger to himself or others. The Veteran's medical treatment notes have generally noted him to be cooperative, alert, oriented, and communicative, with linear and logical thought processes and fair to good judgment and insight. His irritability and isolation have caused problems in occupational and social functioning, but total occupational and social impairment is not shown. The evidence also does not demonstrate persistent delusions or hallucinations. While the Veteran has demonstrated substantial negative symptoms associated with his posttraumatic stress disorder, total occupational and social impairment is not reflected in the Veteran's treatment records or his own statements or testimony. As the persuasive weight of the evidence is not reflective of total occupational and social impairment, a 100 percent rating cannot be assigned. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Glass, 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.