POSTTRAUMATIC STRESS DISORDER (PTSD)

Summary

The veteran, who served from December 1966 to February 1971, appeals the denial of an increased disability rating for service-connected PTSD and the denial of service connection for essential tremor condition, claimed as related to Parkinson's disease. The Board found that the veteran's PTSD, currently rated at 50 percent, did not meet the criteria for a higher rating. The evidence, including a March 2021 VA PTSD DBQ, indicated occupational and social impairment with reduced reliability and productivity, but lacked the severity of symptoms required for a 70 percent rating, such as suicidal ideation, near-continuous panic or depression, or inability to establish and maintain effective relationships. The Board noted the veteran's generally satisfactory functioning in his job and maintenance of some relationships, which were more consistent with the 50 percent criteria. The PTSD claim was therefore denied an increased rating. The claim for essential tremor, potentially related to Parkinson's disease, was remanded due to a pre-decisional duty-to-assist error. The Board found that the existing evidence, including a suggestion of Parkinsonism in a June 2017 neurology note and the veteran's in-service herbicide exposure, warranted a VA examination to clarify the diagnosis and its service connection. The Board could not consider evidence submitted after the appeal period closed.

Rationale

Evidence does not show symptoms meeting 70% criteria (e.g., suicidal ideation, near-continuous panic/depression, illogical speech, spatial disorientation, inability to maintain relationships).; Veteran's functioning generally satisfactory in job, maintaining relationships with friends and children, consistent with 50% criteria.; Impulsivity noted but not to the degree of impaired impulse control required for 70% rating.

Full Decision Text

Citation Nr: A22014545
Decision Date: 07/28/22	Archive Date: 07/28/22

DOCKET NO. 210504-157038
DATE:  July 28, 2022

ORDER

An increased disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is denied.

REMANDED

Entitlement to service connection for essential tremor condition, claimed as related to Parkinson's disease, is remanded.

FINDING OF FACT

The Veteran's service-connected PTSD has resulted in no more than occupational and social impairment with reduced reliability and productivity. 

CONCLUSION OF LAW

The criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1966 to February 1971.

In a March 2016 rating decision, the RO granted service connection for PTSD with an evaluation of 50 percent effective September 8, 2015. The Veteran filed a new claim for benefits on January 11, 2021, requesting, inter alia, an increased rating for PTSD and service connection for essential tremors condition of Parkinson.

This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2021 Regional Office (RO) rating decision. In that rating decision, the RO continued the 50 percent evaluation of PTSD and denied service connection for essential tremor condition of Parkinson's disease. 

The Veteran filed a VA Form 10182 Notice of Disagreement (NOD) indicating disagreement with the March 2021 rating decision for the specific issues of PTSD and service connection for essential tremors condition of Parkinson. The Veteran selected the Hearing with a Veterans Law Judge Board Review Option. 

In a January 31, 2022 correspondence, the Veteran's representative stated that the Veteran does not want to conduct a virtual hearing. They stated that there is enough evidence of record to render a favorable decision, and they requested that the Veteran's hearing be cancelled.

A hearing request may be withdrawn at any time before the date of the hearing pursuant to 38 C.F.R. § 20.704(e). If a Board hearing request is withdrawn pursuant to 38 C.F.R. § 20.704(e), the Board's decision will be based on review of the evidence of record at the time of the agency of original jurisdiction's (AOJ) decision and evidence submitted by the appellant or his or her representative within 90 days following receipt of the withdrawal. 38 C.F.R. § 20.302(c). 

Since the March 2021 rating decision, additional VA treatment records and correspondence has been associated with the record, as well as private treatment records submitted by the Veteran's agent. However, this evidence was associated with the claims file during a time when new evidence was not permitted. See 38 C.F.R. § 20.302. While the Board may consider additional arguments raised by the Veteran and his representative, it may not consider any evidence associated with the claims file between the March 2021 rating decision and the January 31, 2022 notice of the request to cancel the Board hearing, or any evidence received more than 90 days after the January 31, 2022, withdrawal of the hearing request.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 

Staged ratings (the assignment of different ratings for distinct periods of time during an appeal period) are appropriate when the evidence establishes that the manifestations of the service-connected disability warrant different ratings based on varying levels
 § 1155; 38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 

Staged ratings (the assignment of different ratings for distinct periods of time during an appeal period) are appropriate when the evidence establishes that the manifestations of the service-connected disability warrant different ratings based on varying levels of severity throughout the appeal period. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). 

It is the Board's responsibility to determine whether the totality of the probative evidence persuasively weighs in favor of the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event; or whether this evidence persuasively weighs again the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). See also, Lynch v. McDonough, 21 F.4th 776 (2021).

1. Entitlement to an increased rating in excess of 50 percent for service-connected PTSD 

The Veteran contends that his service-connected PTSD warrants a rating higher than currently assigned. The Veteran's PTSD is currently rated as 50 percent disabling from September 8, 2015, under 38 C.F.R. § 4.130, Diagnostic Code 9411.

The criteria for rating PTSD are found at 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation is warranted where there is 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent evaluation is warranted where there is 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 work like setting); and inability to establish and maintain effective relationships. Id.

A 100 percent evaluation requires 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; and memory loss for names of close relatives, own occupation, or own name. Id.

Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Other language in Vazquez-Claudio shows that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. 116.

If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan,
 particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Other language in Vazquez-Claudio shows that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. 116.

If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. 

VA treatment records include a September 9, 2020, preventive medicine note, indicating that depression screening and suicide screening scores were 0, indicating a negative screen for depression and for risk of suicide.

In a March 2021 PTSD Disability Benefits Questionnaire (DBQ), it shows that the Veteran's diagnosed PTSD results in 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 DBQ notes that the Veteran's wife passed away in November 2020. They had been married for 34 years; he had two previous marriages. It notes that the Veteran stays in touch with three of his six children, and that he has friends but does not talk about the military. The report shows the Veteran completed two years of junior college after service, and he retired after working for 40 years in real estate but has recently resumed working. It notes that, previously, when he was going through a divorce he thought about ending his life, went to VA, and was hospitalized and on suicide watch for one day. The Veteran does not take medications or participate in therapy at this time. It notes that he currently drinks 2-3 beers per year, smokes one pack per day, and has no drug use. The examiner noted that the Veteran experiences symptoms of PTSD including irritability and angry outbursts, problems with concentration, anxiety, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. The examiner noted that the Veteran was on time for the scheduled telehealth appointment, was dressed casually and appropriately, appeared adequately groomed, and was oriented to person, place, time, and situation. The Veteran's speech was normal, responses were terse, mood was dysthymic, insight and judgment were appropriate, affect was congruent to the content of the conversation, and attention, concentration, and memory were adequate. 

The examiner noted that the Veteran was cooperative but brusque, and that his thoughts were logical and linear but somewhat defensive. The examiner noted that the Veteran had other symptoms attributable to his PTSD and that they were used in the formulation of diagnosis and impact on daily functioning. The examiner noted that when the Veteran was asked about presence of intrusive thoughts, he said he "thinks about many things" but did not elaborate. The Veteran does not watch movies or participate in other things related to war, he avoids people, and he does not go out. The Veteran admitted to having a bad temper and that he has had problems with concentration for many years. The examiner also noted that the Veteran has difficulty falling asleep and staying asleep. It is also noted that the Veteran has depression and grief related to his wife's passing, has anxiety, has never had a good memory, and can be impulsive. He has issues with other agents but gets along okay with people at his office. The Veteran denied a history of auditory or visual hallucinations, and he did not appear to be attending to internal stimuli. The Veteran denied current thought, intent, or plan to harm, self or others. The examiner noted the Veteran's suicide risk level is not at elevated acute risk.

Based on the foregoing, the Veteran's overall disability picture is most consistent with the criteria for the assignment of a 50 percent rating. The Board places high probative value on the March 2021 VA examination and the symptoms noted therein, as the examiner is a psychologist, trained in the mental health field, and is competent to report the overall state of the Veteran's mental health.

The evidence does not show that the Veteran's
 okay with people at his office. The Veteran denied a history of auditory or visual hallucinations, and he did not appear to be attending to internal stimuli. The Veteran denied current thought, intent, or plan to harm, self or others. The examiner noted the Veteran's suicide risk level is not at elevated acute risk.

Based on the foregoing, the Veteran's overall disability picture is most consistent with the criteria for the assignment of a 50 percent rating. The Board places high probative value on the March 2021 VA examination and the symptoms noted therein, as the examiner is a psychologist, trained in the mental health field, and is competent to report the overall state of the Veteran's mental health.

The evidence does not show that the Veteran's symptoms are of the type and degree contemplated by the criteria for a 70 percent disability rating. The record does not show that the Veteran has suicidal ideation, obsessional rituals, illogical speech, near-continuous panic or depression, spatial disorientation, or an inability to establish and maintain effective relationships. At no time within the appeal period has the evidence shown that the Veteran's PTSD symptoms result in disorientation to time, place, or person. He is not out of touch with reality or been shown to experience persistent delusions or hallucinations, and he has denied any current thought, intent, or plan to harm his self or others. The Veteran was found to have adequate or normal judgment and thinking and had a low score on depression screen, which evidences less than near-continuous depression. 

Although the Veteran reported some problems getting along with other agents, he generally functioned satisfactorily in his job. He maintained relationships with friends and several of his children, and difficulty establishing and maintaining effective relationships is specifically considered by the 50 percent criteria. While the Veteran reported that he can be impulsive, his ability to maintain a job suggests that he does not have impaired impulse control consistent with the 70 percent criteria. The Board notes that the symptom of "difficulty adapting to stressful circumstances, including work or a work like setting" is found under the 70 percent rating criteria. Nevertheless, the remainder of the Veteran's symptoms and level of functioning are more consistent with occupational and social impairment with reduced reliability and productivity rather than deficiencies in most areas. Thus, the evidence weighs persuasively against finding the Veteran's PTSD symptoms are of the severity, frequency, and duration to result in the level of impairment contemplated by the 70 percent rating or higher at any time during the appeal period. Accordingly, assignment of a rating in excess of 50 percent is not appropriate.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether a disability rating in excess of 50 percent is warranted for service-connected PTSD. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine is therefore not for application. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to service connection for essential tremor condition, claimed as due to Parkinson's disease, is remanded.

The Board finds remand is needed to correct a pre-decisional duty-to-assist error.

The Veteran contends that his tremor condition is due to his active service and alternatively that it is due to Parkinson's disease. The March 2021 rating decision contained favorable findings indicating that the Veteran has been diagnosed with the disability of essential tremor condition. Specifically, the AOJ noted that a September 2020 treatment record from the Rockford VA Medical Center shows treatment for tremors involving his upper limbs. 

The Veteran is presumed to have been exposed to herbicide agents based on his service in Vietnam, as shown in his service personnel records. See 38 C.F.R. § 3.307(a)(6). Parkinson's disease is among the diseases presumed to be associated with exposure to herbicide agents, however, essential tremor is not. See 38 C.F.R. § 3.309(e). Thus, the Veteran's claim rests on whether he has Parkinson's disease or not. 

The only reference to Parkinson's disease or Parkinsonism in the available record is found in VA treatment records. A neurology clinic follow-up note from June 2017 shows that the Veteran was presenting for follow up on recently diagnosed essential tremor. He had last been seen in the clinic on February 2017 and was evaluated for potential Parkinsonism symptoms. The provider noted that the Veteran reported noticing his handwriting getting smaller and messier over the last year and some urinary retention issues but no constipation; he denied any visual hallucinations or issues with swallowing. The Veteran reported that his wife had noticed that he moves his legs a lot in his sleep, but he did
, the Veteran's claim rests on whether he has Parkinson's disease or not. 

The only reference to Parkinson's disease or Parkinsonism in the available record is found in VA treatment records. A neurology clinic follow-up note from June 2017 shows that the Veteran was presenting for follow up on recently diagnosed essential tremor. He had last been seen in the clinic on February 2017 and was evaluated for potential Parkinsonism symptoms. The provider noted that the Veteran reported noticing his handwriting getting smaller and messier over the last year and some urinary retention issues but no constipation; he denied any visual hallucinations or issues with swallowing. The Veteran reported that his wife had noticed that he moves his legs a lot in his sleep, but he did not notice it. The Veteran reported that he felt that his movements had slowed but that he thought it was related to his aging. The provider's assessment was that there was some slight cogwheeling and decreased arm swing on the right that could potentially be some early signs of Parkinsonism. The provider noted that the Veteran appears to have mild masked facies, and his syncopal episodes could be from autonomic instability. The provider further noted that his handwriting had gotten smaller as well; however, the provider determined that the Veteran's tremor was not consistent with this and was more consistent with an essential tremor. A September 2020 primary care note shows that the Veteran continues to have tremors involving the upper limb, but it does include a diagnosis of Parkinson's disease or Parkinsonism. 

The Board finds the AOJ should have obtained a VA examination to clarify whether the Veteran has Parkinson's disease. The evidence available for review at the time of the AOJ decision showed a current disability of tremors, in-service exposure to herbicide agents, and the suggestion that tremors may be related to Parkinson's disease, which would be presumed associated with herbicide exposure. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As such, the AOJ erred in not obtaining a VA medical examination and opinion. 

The Board notes that in October 2021, the Veteran's agent stated that the Veteran claimed entitlement to service connection for the essential tremors condition of Parkinson's disease and submitted evidence supporting this contention. As noted above, the Board can only consider evidence of record at the time of the March 2021 AOJ decision on appeal or that submitted within 90 days of the January 31, 2022 withdrawal of the hearing request. The October 2021 statement and accompanying evidence was not received within an appropriate evidence window, and the Board cannot consider it.

The matters are REMANDED for the following action:

Request the Veteran be scheduled for a VA examination for Parkinson's disease and tremor. The examiner should conduct an examination of the Veteran, including any necessary testing, and review the record. The examiner should then address whether the Veteran at least as likely as not has Parkinson's disease associated with his tremors. If not, the examiner should address whether the Veteran's essential tremors are approximately at least as likely as not related to presumed exposure to herbicide agents in service. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the examiner should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge.

 

A.P. Armstrong

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Labi, 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.