PTSD DUE TO COMBAT

Summary

The veteran, who served from July 1969 to October 1970, appeals the rating decision for his service-connected Post-Traumatic Stress Disorder (PTSD). The appeal concerns the staged initial disability rating prior to December 30, 2019, and any rating in excess of 70 percent from December 30, 2019, forward. The Board reviewed evidence including the veteran's testimony, VA examinations from March 2013 and July 2019, and VA treatment records. The veteran reported self-isolation, difficulty with relationships, and self-medication with cannabis. The March 2013 VA exam noted chronic sleep impairment, difficulty concentrating, anxiety, and social impairment. The July 2019 exam noted similar symptoms, but the veteran denied suicidal ideation and had normal affect and judgment. The Board found the veteran's symptoms prior to December 30, 2019, most closely approximated the criteria for a 50 percent rating, noting his few friends and infrequent contact with family, but also his lack of suicidal ideation or near-continuous panic. For the period from December 30, 2019, the Board affirmed the 70 percent rating granted by the RO, finding the evidence showed deficiencies in most areas but not the gross impairment required for 100 percent. The Board found the veteran competent and credible regarding his symptoms but not competent to rate the disability. Service connection for PTSD with a 50 percent rating prior to December 30, 2019, was granted. Entitlement to a rating higher than 70 percent from December 30, 2019, was denied.

Rationale

Veteran's symptoms prior to Dec 30, 2019, approximated 50% criteria.; Lack of suicidal ideation, near-continuous panic, or gross impairment prevented higher rating.; Veteran found competent and credible regarding symptoms, but not competent to rate.

Full Decision Text

Citation Nr: 20062537
Decision Date: 09/23/20	Archive Date: 09/23/20

DOCKET NO. 14-15 269A
DATE: September 23, 2020

ORDER

Entitlement to a 50 percent staged initial disability rating, but no higher, prior to December 30, 2019, for posttraumatic disorder (PTSD), is granted.

Entitlement to a disability rating in excess of 70 percent, from December 30, 2019, for PTSD, is denied.

FINDINGS OF FACT

1. During the rating period on appeal, prior to December 30, 2019, the Veteran’s service-connected PTSD was manifested by symptoms that more closely approximate functional impairment comparable to no worse than occupational and social impairment with reduced reliability and productivity.

2. During the rating period on appeal, from December 30, 3019, the Veteran’s service-connected PTSD was manifested by symptoms that more closely approximate functional impairment comparable to no worse than occupational and social impairment with deficiencies in most areas.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a 50 percent staged initial disability rating, but no higher, prior to December 30, 2019, for PTSD, have been met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.

2. The criteria for entitlement to a disability rating in excess of 70 percent, from December 30, 2019, for PTSD, have not been met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1969 to October 1970.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2013 rating decision by a Department of Veterans Appeals (VA) Regional Office (RO).  During the pendency of the appeal, a July 2020 rating decision granted an increased rating from 30 percent to 70 percent for the Veteran’s service-connected PTSD, effective December 30, 2019, the date of the most recent VA examination.  As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision.  AB v. Brown, 6 Vet. App. 35 (1993).

The Board last remanded the issue on appeal in November 2019.  A review of the record shows substantial compliance with the Board’s remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  The case has been returned to the Board for review.  

The Veteran testified before the undersigned Veterans Law Judge at a July 2019 video conference hearing.  A transcript of that hearing is of record. 

The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, although the Veteran asserted he is no longer working, he nor his representative argue that his service-connected PTSD at issue renders him unemployable.   The Veteran asserted that he is not seeking to file a claim for a TDIU at this time.  See July 2014 Statement in Support of Claim.  Additionally, the record does not otherwise reflect that the Veteran is unemployable on account of his service-connected PTSD.  Accordingly, the Board concludes that a claim for a TDIU has not been expressly raised or inferred.  

The Board further acknowledges that, in July 2020, the Veteran submitted additional statements relating to his service-connected PTSD.  Under 38 U.S.C. § 7105(e)(1), for substantive appeals received on or after February 2, 2013, a waiver of RO review is not required for new pertinent evidence that is submitted by the appellant or representative, and the Board may proceed with adjudication and consideration of the new
 time.  See July 2014 Statement in Support of Claim.  Additionally, the record does not otherwise reflect that the Veteran is unemployable on account of his service-connected PTSD.  Accordingly, the Board concludes that a claim for a TDIU has not been expressly raised or inferred.  

The Board further acknowledges that, in July 2020, the Veteran submitted additional statements relating to his service-connected PTSD.  Under 38 U.S.C. § 7105(e)(1), for substantive appeals received on or after February 2, 2013, a waiver of RO review is not required for new pertinent evidence that is submitted by the appellant or representative, and the Board may proceed with adjudication and consideration of the new evidence in the first instance.  The Veteran’s substantive appeal was received after February 2, 2013, in May 2014.  Therefore, a waiver of RO review is not required, and the Board may consider the additional lay statements in the first instance.  38 U.S.C. § 7105(e)(1); 38 C.F.R. § 20.1304(c).   

Entitlement to a 50 percent staged initial disability rating, but no higher, prior to December 30, 2019, for PTSD.  

Entitlement to a disability rating in excess of 70 percent, from December 30, 2019, for PTSD.

The Veteran seeks a staged initial disability rating higher than 30 percent, prior to December 30, 2019, for his symptoms related to his service-connected PTSD.  See May 2013 Notice of Disagreement (NOD).  Specifically, the Veteran asserts that his symptoms, prior to December 30, 2019, more closely approximate the criteria consistent with a 50 percent rating.  See May 2014 VA Form 9.  

Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Disability evaluations are determined by assessing the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule.  If there is a question as to which evaluation should be applied to the veteran’s disability, 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. 

The primary focus in a claim for increased rating is the present level of disability.  Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  

In rating mental disorders under the General Rating Formula, the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria.  38 C.F.R. § 4.130; Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017).  The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages.  Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002).

The Veteran’s PTSD is rated under Diagnostic Code (DC) 9411, which compensates specifically for that disability, and applies the General Rating Formula for Mental Disorders.  As per DC 9411, a 30 percent rating is assigned 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).
auerhan v. Principi, 16 Vet. App. 436, 444 (2002).

The Veteran’s PTSD is rated under Diagnostic Code (DC) 9411, which compensates specifically for that disability, and applies the General Rating Formula for Mental Disorders.  As per DC 9411, a 30 percent rating is assigned 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).  See 38 C.F.R. § 4.130, DC 9411.

A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  Id.

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 symptoms 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.  Id. 

Finally, a 100 percent rating is granted 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.  Id.

Prior to December 30, 2019

In considering the frequency, severity, and duration of the Veteran’s symptoms, the Board concludes that a 50 percent staged initial rating is warranted for his service-connected PTSD prior to December 30, 2019.  The Veteran initially submitted a claim for service connection for PTSD in January 2011.  The Veteran reported that he had no close relationships and always self-medicated.  See February 2011 Statement in Support of Claim.  The Veteran reported that he self-isolates more frequently; has difficulty establishing new relationships; and his dog helps alleviate symptoms of aggravation, agitation, and anger.  See May 2014 Form 9.  

The Veteran was afforded a VA examination in March 2013.  The Veteran reported often distancing himself from others, difficulty with relationships, has few friends, divorced, no children, and used cannabis to self-medicate.  See March 2013 VA examination.  The VA examiner noted the Veteran’s symptoms included: chronic sleep impairment; difficulty concentrating; anxiety; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work like setting.  Id. The VA examiner concluded the Veteran’s symptoms manifested in 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 medication.  Id. 

At the July 2019 VA examination, the Veteran testified that he had difficulty approaching people; avoids people; had a couple of good friends but no serious relationships; used marijuana to self-medicate up to two years prior to the hearing; lives by himself; self-isolates more since moving to Oregon; and believed his symptoms had worsened since the March 2013 VA examination.  See July 2019 Hearing Transcript.  The Veteran testified that he sought treatment but did not get treatment, in part, because of embarrassment.  Id.  VA treatment records shows that the Veteran was oriented to person, time, and place; normal affect; and denied suicidal and homicidal ideation.  See September 2014, September 2016, and October 2017 VA treatment records.  At the Veteran’s most recent VA examination, the Veteran reported dealing with symptoms including depression, anxiety, sleep, anger, decreased concentration, and decreased interest that he managed with cannabis up until 2 years prior. 
 more since moving to Oregon; and believed his symptoms had worsened since the March 2013 VA examination.  See July 2019 Hearing Transcript.  The Veteran testified that he sought treatment but did not get treatment, in part, because of embarrassment.  Id.  VA treatment records shows that the Veteran was oriented to person, time, and place; normal affect; and denied suicidal and homicidal ideation.  See September 2014, September 2016, and October 2017 VA treatment records.  At the Veteran’s most recent VA examination, the Veteran reported dealing with symptoms including depression, anxiety, sleep, anger, decreased concentration, and decreased interest that he managed with cannabis up until 2 years prior.  See December 2019 VA examination. 

In view of the above, the Board finds that a 50 percent staged initial rating, but no higher, prior to December 30, 2019, is warranted.  The Veteran’s overall symptomatology for PTSD more closely approximated occupational and social impairment with reduced reliability and productivity prior to December 30, 2019.  However, the Veteran has not shown to have many of the symptoms consistent with the criteria listed for a 70 percent rating such as suicidal ideation; speech intermittently illogical, obscure, or illogical; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; or neglect of personal appearance.  Though the Veteran has difficulty establishing and maintaining effective work and social relationships, the evidence does not show an inability to establish and maintain effective relationships as contemplated by the 70 percent criteria.  Rather, the evidence shows that the Veteran has a few friends, and speaks to his older brother and younger sister a few times per year.  As such, the Board has not found any further evidence which would support a higher initial staged rating for his service-connected PTSD prior to December 30, 2019.  See Mauerhan, 16 Vet. App. at 444. 

The Board notes the Veteran is competent and credible to identify readily observable symptoms of his service-connected PTSD.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, to the extent that the Veteran asserts his PTSD warranted a higher rating prior to December 30, 2019 than that granted herein, the Board notes that he has not been shown to have the requisite knowledge or skill to be deemed competent to rate the severity of the disability at issue in accordance with the criteria set forth in the Rating Schedule.  Additionally, neither the Veteran nor his representative have provided any evidence to support a 70 percent or higher disability rating is warranted prior to December 30, 2019.  The Board concludes that, overall, the Veteran’s psychiatric symptomatology more closely coincides with the criteria for an initial staged 50 percent disability rating prior to December 30, 2019 in terms of severity, frequency, and duration.  

From December 30, 2019

As noted, for the appeal period from December 30, 3019, the Veteran’s PTSD is rated as 70 percent.  See July 2020 rating decision.  The evidence of record contains a December 2019 VA examination and July 2020 lay statements.  At the December 2019 VA examination, the Veteran reported he is not socially active; has no romantic relationships; has difficulty meeting people; lives on his own; and has sleep problems.  See December 2019 VA examination.  The VA examiner noted the Veteran’s symptoms included: depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stress circumstances; and inability to establish and maintain effective relationships.  Id.  There were no hallucinations, panic attacks, self-destructive behavior, impulsivity, or suicidal ideation demonstrated upon examination.  Id.  The VA examiner noted the Veteran dressed appropriately and was adequately groomed; speech was clear and coherent; no evidence of thought disorder or psychotic process; thinking was logical, linear and goal-oriented; affect was appropriate and stable; and insight and judgment appeared within normal limits.  Id.  The VA examiner concluded the Veteran’s symptoms manifested in occupational and social impairment with reduced reliability and productivity.  Id.  The Veteran also asserted that he still has intrusive thoughts several times a day, constant sleep issues, nightly cold sweats and extremely irritable.  See July 2020 Statement in Support of Claims.  Based on the evidence of record, the RO granted a 70 percent rating effective December 30, 3019.  However, the Veteran has not been shown to have many of the symptoms consistent with the criteria listed for a 100
 no evidence of thought disorder or psychotic process; thinking was logical, linear and goal-oriented; affect was appropriate and stable; and insight and judgment appeared within normal limits.  Id.  The VA examiner concluded the Veteran’s symptoms manifested in occupational and social impairment with reduced reliability and productivity.  Id.  The Veteran also asserted that he still has intrusive thoughts several times a day, constant sleep issues, nightly cold sweats and extremely irritable.  See July 2020 Statement in Support of Claims.  Based on the evidence of record, the RO granted a 70 percent rating effective December 30, 3019.  However, the Veteran has not been shown to have many of the symptoms consistent with the criteria listed for a 100 percent rating such as gross impairment of thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to time or place; or memory loss for names at any time during the appeal period.  As such, the Board finds that the preponderance of the evidence for the period from December 30, 2019 demonstrates that the Veteran’s PTSD was, at worst, manifest by symptoms productive of occupational and social impairment with deficiencies in most areas.  

In summary, the Board finds that the probative evidence of record demonstrates the Veteran’s disability picture most nearly approximated the criteria for a 50 percent staged initial rating, but no higher, under DC 9411, prior to December 30, 2019, and 70 percent, but no higher, from December 30, 2019.  To the extent the Veteran seeks a rating in excess of that granted herein and granted by the RO, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application and the appeal must be denied.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) 

 

(confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).   

 

 

U. R. POWELL

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. P. Moore, 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.