POSTTRAUMATIC STRESS DISORDER (PTSD)

Summary

The veteran, who served from December 1965 to December 1958, appeals the denial of increased disability ratings for his service-connected post-traumatic stress disorder (PTSD). The appeal concerns three periods: prior to May 30, 2018, from May 30, 2018, to May 31, 2020, and from June 1, 2020, onward. The veteran sought ratings higher than 30 percent for the first and third periods, and higher than 70 percent for the second period. The Board reviewed VA examinations from February 2017, May 2018, and January 2020, along with VA treatment records. The February 2017 exam noted symptoms consistent with a 30% rating, despite some findings that could align with higher ratings, such as isolation and disturbances of motivation and mood. The May 2018 exam noted symptoms consistent with a 50% rating, including panic attacks and disorientation, but the examiner also noted the veteran was oriented and had normal speech and cognitive functioning. The January 2020 exam found symptoms consistent with a 30% rating. The Board found the evidence did not demonstrate symptoms of sufficient severity or frequency to warrant a 50% or higher rating for the periods prior to May 30, 2018, and from June 1, 2020, onward, citing the veteran's ability to maintain relationships and function satisfactorily. For the period of May 30, 2018, to May 31, 2020, the Board acknowledged a possible disorientation symptom noted in one exam but found it inconsistent with other observations and not sufficiently severe for a higher rating. The Board denied increased ratings for all periods, finding the veteran's PTSD did not more nearly approximate the criteria for higher ratings. The issue of a prior rating reduction was referred to the AOJ. Entitlement to TDIU was remanded.

Rationale

Weight of evidence shows symptoms did not meet criteria for 50% or higher prior to May 30, 2018, or from June 1, 2020 onward.; Symptoms did not demonstrate severity, variety, or frequency for 50% or higher rating.; Veteran maintained relationships and functioned satisfactorily, indicating symptoms did not cause total social impairment.

Full Decision Text

Citation Nr: 22049026
Decision Date: 08/29/22	Archive Date: 08/29/22

DOCKET NO. 17-66 897
DATE: August 29, 2022

ORDER

Entitlement to an initial rating higher than 30 percent for service-connected posttraumatic stress disorder (PTSD) prior to May 30, 2018 and from June 1, 2020 onward is denied. 

Entitlement to a rating higher than 70 percent for service-connected PTSD from May 30, 2018 to May 31, 2020 is denied.

REFERRED

The issue of entitlement to restoration of a 70 percent rating for PTSD, effective June 1, 2020. As discussed in this decision, the RO reduced the Veteran's PTSD rating from 70 to 30 percent, effective June 1, 2020. However, the Agency of Original Jurisdiction (AOJ) has not adjudicated the propriety of the reduction claim. Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action.

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. Prior to May 30, 2018 and from June 1, 2020 onward, the Veteran's service-connected PTSD has manifested as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood, productive 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).

2. From May 30, 2018 to May 31, 2020, the Veteran's service-connected PTSD manifested as depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships, productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial rating higher than 30 percent for service-connected PTSD prior to May 30, 2018 and from June 1, 2020 onward have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.

2. The criteria for entitlement to a rating higher than 70 percent for service-connected PTSD from May 30, 2018 to May 31, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1965 to December 1958.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The Board previously remanded this matter in November 2019 to obtain outstanding VA treatment records and for the RO to issue a Supplemental Statement of the Case (SSOC). The RO substantially complied with the remand directives and completed the requested development; therefore, further remand is unnecessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 

The Board notes that the record contains evidence not yet considered by the agency of original jurisdiction (AOJ); however, the Veteran waived AOJ consideration of that evidence prior to a decision on the merits. See June 2022 Additional Evidence Response Form. Therefore, the Board may proceed to the merits. See 38 C.F.R. § 20.1305(c).

As a preliminary matter, at the February 2017 VA examination, the Veteran reported receiving Social Security Administration (SSA) benefits. There are no SSA records presently associated with the claims file; however, the Board notes that any records based on disability benefits would no longer exist. Once a person reaches retirement age, disability benefits automatically convert to retirement benefits, and it is SSA's policy to then destroy the medical records associated with the disability claim. See 68 F.R. 71210 (December
 waived AOJ consideration of that evidence prior to a decision on the merits. See June 2022 Additional Evidence Response Form. Therefore, the Board may proceed to the merits. See 38 C.F.R. § 20.1305(c).

As a preliminary matter, at the February 2017 VA examination, the Veteran reported receiving Social Security Administration (SSA) benefits. There are no SSA records presently associated with the claims file; however, the Board notes that any records based on disability benefits would no longer exist. Once a person reaches retirement age, disability benefits automatically convert to retirement benefits, and it is SSA's policy to then destroy the medical records associated with the disability claim. See 68 F.R. 71210 (December 22, 2003). The Veteran did not report receiving SSA benefits until he was 69 years old, more than three years after he reached full retirement age and qualified for retirement benefits. See "Full Retirement Age," Social Security Administration, https://www.ssa.gov/benefits/retirement/learn.html (last accessed August 23, 2022). As any SSA disability records would no longer exist per the above records retention policy, the Board will undertake no development to request such records.

The Veteran seeks an initial rating higher than 30 percent prior to May 30, 2018, a rating higher than 70 percent from May 30, 2018 to May 31, 2020, and a rating higher than 30 percent from June 1, 2020 onward for his service-connected PTSD. 

During the course of this appeal, the Veteran's rating for PTSD was decreased to 30 percent, effective, June 1, 2020, due to improvement observed at the January 2020 VA examination. See March 2020 Rating Decision. The propriety of a rating reduction is a separate issue from a claim for an increased rating. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). The PTSD rating reduction was not adjudicated by the Agency of Jurisdiction (AOJ) in the Statement of the Case (SOC) or Supplemental Statement of the Cases (SSOCs). In addition, neither the Veteran nor his representative have disagreed with the reduction of the PTSD rating from 70 to 30 percent, effective June 1, 2020. Thus, the Board does not have jurisdiction over the reduction issue and it is referred to the AOJ for appropriate action. As such, the Board will adjudicate the narrow issue of whether the Veteran is entitled to higher ratings for his service-connected PTSD for the prescribed periods on appeal, not whether the above-rating reduction was proper.  

The Veteran's service-connected PTSD is rated under 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. 

A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) cause 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).

A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

A 70 percent rating is assigned when 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 cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

A 100 percent rating is assigned when symptoms such 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 cause total
 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.

A 100 percent rating is assigned when symptoms such 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 cause total occupational and social impairment. 

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, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (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, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, 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, 713 F.3d at 118.

The Veteran was afforded VA examinations assessing the nature and severity of his service-connected PTSD in February 2017, May 2018, and January 2020.

At the time of the February 2017 examination, the Veteran had been married for nearly 50 years and lived with his wife, adult daughter, and four of his grandchildren. He indicated that he had positive household relationships, but at times, all the commotion in the household aggravated his PTSD symptoms. He further indicated that he retired in 2010 after working as a boiler operator for many years, which, for the most part, was not significantly or persistently disrupted by his PTSD symptoms. The examiner marked that he experienced anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood as symptoms of his PTSD and separately discussed additional symptoms of hypervigilance, mild and episodic irritability, episodes pf isolation and emotional detachment, and frequent and disruptive startle reactions. The examiner observed that he was well-groomed, alert and oriented in all spheres, not an imminent suicidal or homicidal risk, and that he had normal speech, grossly intact cognitive functioning, and appropriate affect. There was no evidence of hallucinations or delusions. The examiner ultimately determined that the severity and duration of the Veteran's symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

At the time of the May 2018 examination, the Veteran had been married for 50 years, had three adult children and five grandchildren, and retired for the third time in 2016. He indicated that he spent his days working around the house and reported a history of physically assaulting his wife during his sleep from nightmares. The examiner marked that he experienced depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficult in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and disorientation to time or place as symptoms of his PTSD. The examiner observed that he was casually and appropriately dressed, alert and oriented, and he exhibited normal language, largely normal speech, anxious affect, and anxious/depressed mood. The examiner ultimately determined that the severity and duration of the Veteran's symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

At the time of January 2020 examination, the Veteran was still married to his wife of 50 years. He reported that he had a good marriage, a good relationship with his children, and a good relationship with other
, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and disorientation to time or place as symptoms of his PTSD. The examiner observed that he was casually and appropriately dressed, alert and oriented, and he exhibited normal language, largely normal speech, anxious affect, and anxious/depressed mood. The examiner ultimately determined that the severity and duration of the Veteran's symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

At the time of January 2020 examination, the Veteran was still married to his wife of 50 years. He reported that he had a good marriage, a good relationship with his children, and a good relationship with other family members not in his household. The examiner marked that he experienced depressed mood, anxiety, and chronic sleep impairment as symptoms of his PTSD. The examiner observed that he was well-groomed and had normal speech, thought processes, affect, and insight and judgment but mildly impaired attention, concentration, and recent and remote memory. There was no evidence of hallucinations, delusions, or paranoia. The examiner ultimately determined that the severity and duration of the Veteran's symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

The Veteran's VA treatment records document his reported symptoms and observed behavior throughout the appeal period. These reports collectively disclose across several visits, that the Veteran was alert and oriented to all spheres, casually and appropriately dressed, fairly- to well-groomed, and exhibited normal speech, normal thought processes, no suicidal or homicidal ideation, no hallucinations or delusions, and fair to good insight and judgment. See, generally, March 2017 to March 2020 VA Treatment Records. On many occasions, providers observed that he had intact memory, concentration, and attention and good impulse control. See August 2017 to March 2020 VA Treatment Records. In August 2017 and March 2020, he reported single instances of seeing something that was not actually there, and in October 2018, he reported having passive suicidal ideation; however, at each of these visits, his providers marked that he did not have auditory or visual hallucinations or suicidal ideation. See August 2017 Mental Health Note; October 2018 Psychiatry Note; March 2020 Mental Health Note.

Per his August 2017 Notice of Disagreement (NOD), the Veteran reported being uncomfortable in crowded environments, preferring to be with friends he has known for years, making no new friends and having difficulty sleeping and a need for familiar people and places. 

The Board finds that for the periods prior to May 30, 2018 and from June 1, 2020 onward, the weight of the evidence shows that the severity, frequency, and variety of the Veteran's PTSD symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood have resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Board further finds that the severity, frequency, and variety of the Veteran's psychiatric symptoms from May 30, 2018 to May 31, 2020, including depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficult in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships, resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

The Board recognizes that there is evidence of some symptoms generally contemplated by higher rating criteria prior to May 30, 2018. Specifically, the Veteran reported experiencing a hallucination to a VA provider, reported having no new friends in his NOD, and the February 2017 VA examiner stated that he episodes of isolation/emotional detachment and marked that he experienced disturbances of motivation and mood. While hallucinations are contemplated by the 100 percent rating criteria, the Board notes that a single hallucination does not fit the criteria, which is focused on persistent delusions or hallucinations, and the Veteran's providers consistently observed that he did not experience auditory or visual hallucinations during the same portion of the appeal period. Separately, while difficulty in establishing and maintaining effective social relationships is contemplated by the 50 percent rating criteria, the Veteran also indicated that he nonetheless has friends, discussed ongoing relationships with his wife and grandchildren to VA providers, and reported no difficulty in establishing or maintaining relationships across his VA treatment. As to the finding of disturbances of motivation and mood and the statement as to isolation/emotional detachment by the February 2017 VA examiner, the Board notes that the same examiner
 100 percent rating criteria, the Board notes that a single hallucination does not fit the criteria, which is focused on persistent delusions or hallucinations, and the Veteran's providers consistently observed that he did not experience auditory or visual hallucinations during the same portion of the appeal period. Separately, while difficulty in establishing and maintaining effective social relationships is contemplated by the 50 percent rating criteria, the Veteran also indicated that he nonetheless has friends, discussed ongoing relationships with his wife and grandchildren to VA providers, and reported no difficulty in establishing or maintaining relationships across his VA treatment. As to the finding of disturbances of motivation and mood and the statement as to isolation/emotional detachment by the February 2017 VA examiner, the Board notes that the same examiner ultimately opined that the Veteran's occupational and social impairment was best summarized as involving occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, aligned with the 30 percent rating criteria. The Board finds that these symptoms are not of the severity, variety, or frequency to warrant a 50 percent or higher. 

In conclusion, the Board finds that the weight of the evidence does not demonstrate any other symptom contemplated by a 50 percent rating or higher prior to May 30, 2018 or from June 1, 2020 onward. For instance, the Veteran has not endorsed, and the evidence does not demonstrate, symptoms such as panic attacks more than once a week, impairment of short- and long-term memory, impaired impulse control, suicidal ideation, neglect of personal appearance and hygiene, obsessional rituals, disorientation, inability to establish and maintain effective relationships, or remaining symptoms expressly contemplated by the 50 percent, 70 percent, and 100 percent rating criteria.  Ultimately, the evidence demonstrates that while he experienced occupational and social impairment due to his PTSD symptoms during these portions of the appeal period, he was able to maintain a 50-year marriage that he described as "good," maintain positive household relationships with his daughter and grandchildren, and help care for his grandchildren, all of which suggest that his PTSD did not manifest as occupational and social impairment with reduced reliability and productivity.

Accordingly, the Board finds that prior to May 30, 2018 or from June 1, 2020 onward, the Veteran's PTSD overall disability picture did not more nearly approximate the criteria for a rating in excess of 30 percent during the prescribed period. 

From May 30, 2018 to May 31, 2020

The Board finds that the weight of the evidence is against a rating in excess of 70 percent during the period from May 30, 2018 to May 31, 2020.  The Board recognizes that the May 2018 VA examiner indicated that the Veteran experienced disorientation to time or place as a symptom of his PTSD, which is contemplated by the 100 percent rating criteria. At the same examination, however, the examiner specifically stated that the Veteran was alert and "fully oriented" and provided no discussion as to why he believed the Veteran was disoriented. Less than a month prior to and following the examination, VA providers specifically observed that the Veteran was alert and oriented to time, place, and person. See May 2018 Behavioral Health Note; July 2018 Pulmonary Note. No other VA provider or examiner has observed that he was disoriented to time or place. The Board does not find this single, inconsistent determination probative in light of the overall evidence demonstrating that the Veteran does not experience disorientation to time or place. 

The Board also recognizes that the Veteran reported experiencing a hallucination to a VA provider in March 2020. As previously discussed, while hallucinations are contemplated by the 100 percent rating criteria, a single hallucination does not fit the criteria, and the Veteran's providers consistently observed that he did not experience auditory or visual hallucinations during the same portion of the appeal period. This symptom is not of the severity, variety, or frequency to warrant a 100 percent rating. 

Overall, the cumulative evidence does not demonstrate any other symptom contemplated by a 100 percent rating from May 31, 2018 to May 31, 2020. For instance, the Veteran has not endorsed, and the evidence does not demonstrate, symptoms such as gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), or memory loss for names of close relatives, own occupation, or own name. In addition, the Veteran's PTSD symptoms did not result in total social impairment. Again, similar to the Board's earlier finding, the evidence demonstrates that the Veteran was able to maintain a 50-year marriage, maintain positive household relationships with his daughter and grandchildren, and help care for his grandchildren, all of which suggest that his PTSD did not manifest as total social impairment.

Accordingly,
. For instance, the Veteran has not endorsed, and the evidence does not demonstrate, symptoms such as gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), or memory loss for names of close relatives, own occupation, or own name. In addition, the Veteran's PTSD symptoms did not result in total social impairment. Again, similar to the Board's earlier finding, the evidence demonstrates that the Veteran was able to maintain a 50-year marriage, maintain positive household relationships with his daughter and grandchildren, and help care for his grandchildren, all of which suggest that his PTSD did not manifest as total social impairment.

Accordingly, the Board finds that for the period from May 31, 2018 to May 31, 2020, the Veteran's PTSD manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board further finds that the Veteran's PTSD did not manifest with symptoms of such severity or variety to indicate that the resulting occupational and social impairment is not fully contemplated by a 70 percent rating.

Based on the above, higher ratings for service-connected PTSD are not warranted, and the claim is denied.

REASONS FOR REMAND

The Board finds that a remand is necessary to obtain updated VA examinations as to the Veteran's service-connected prostate cancer, hearing loss, and tinnitus to determine how these service-connected disabilities functionally impact his ability to work. (Parenthetically, the Board observes that the most recent VA genitourinary examination was in April 2009, over 13 years ago, and the most recent VA audiology examination was in February 2016, over six years ago). 

The matter is remanded for the following action:

Schedule VA examinations to address the current severity of the Veteran's service-connected prostate cancer, hearing loss, and tinnitus. The examiner(s) must comment on the functional impact of his disabilities on his ability to work. If any findings are not possible without resort to speculation, then the examiner must explain why.

 

 

Carole R. Kammel

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Tierno

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.