Citation Nr: 18143386 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 16-24 974 DATE: October 19, 2018 ORDER Entitlement to an increased rating for posttraumatic stress disorder (PTSD) and major depressive disorder (currently evaluated as 70 percent disabling prior to September 16, 2014, 100 percent disabling from September 16, 2014 to February 1, 2015, 70 percent disabling from February 1, 2015 to May 1, 2016, and 100 percent disabling thereafter) is denied. FINDINGS OF FACT At no time prior to September 16, 2014, or from February 1, 2015 to May 1, 2016, has the Veteran’s acquired psychiatric disability manifested in symptoms causing total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent prior to September 16, 2014, and from February 1, 2015 to May 1, 2016 for PTSD and major depressive disorder have not been met. 38 U.S.C. §§1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty training from November 1996 to February 1997, and active duty from December 2003 to March 2005. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Philadelphia, Pennsylvania. In an August 2016 rating decision, the RO granted a 100 percent rating for the Veteran’s acquired psychiatric disability. In a May 2016 rating decision, the RO granted a TDIU based on the Veteran’s acquired psychiatric disability. In a March 2018 rating decision, an earlier effective date of June 29, 2013, was awarded for TDIU. Legal Criteria The Veteran’s acquired psychiatric disability is rated by applying the criteria in 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. The VA Schedule rating formula for mental disorders reads in pertinent part as follows: 100 percent rating (the maximum schedular rating) - 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. 70 percent - 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); inability to establish and maintain effective relationships. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency 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). 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, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442 ; see also Sellers v. Principi, 372 F.3d 1318 (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 rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In reaching the decision below, the Board has reviewed the evidence of record, to include clinical records, and the statements as to the Veteran’s symptoms regardless of whether they are the examples listed in the rating criteria. The Board wishes to make it clear that while it has read all the evidence, it will not discuss each and every reported symptom for each and every encounter. Reference to the Veteran’s mental health disability is presented in the record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s disability that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. It is possible that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis. See DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011) (holding that “entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition” (citing 38 U.S.C. § 5110(a)); Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (holding that “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date”). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of the Veteran’s symptoms increased sometime prior to the date of the examination/clinical reports. Prior to September 16, 2014 The Veteran filed his claim for an increased rating in October 2013 and the Board has reviewed the record with particular emphasis on the evidence from October 2012 to the present. The Board finds that the Veteran is not entitled to a higher rating (i.e. 100 percent) prior to September 16, 2014. The preponderance of the evidence during this time is against a 100 percent rating. While in November 2012 he reported that his sleep was better, but “not great” and that he had recently felt “really agitated,” a November 2012 VA record noted he reported he was “good, for the most part” and that he was “working a lot” and that he was in a relationship (see November 2012 VA records). He was described by a treating provider as having good insight and judgment (see October 2012 VA record) VA clinical records in 2013 reflect that he was doing “great” with regard to irritability (see March 2013 VA record), was still working (see March 2013 VA record), had in improvement in mental health after a medication adjustment and was “doing better at work, and was better able to focus (see April 2013 VA record). He also reported in early June 2013, that he felt that he was doing well, sleeping well, and that his PTSD was under control and without suicidal or homicidal ideation. Another June 2013 VA clinical record reflects that the Veteran reported that he had been suspended from his job due to “alleged non-performance of certain duties” which the Veteran attributed to “a period of sleep disturbances and nightmares, saying he is not certain as to whether he actually performed the tasks in question.” The Veteran’s mood was optimistic and positive even though he acknowledged that he may lose his job. Notably he was lucid, calm, and had normal speech, and coherent thought process without any loosened associations. An August 2013 VA clinical record reflects that the Veteran was laid off from his job “after minor motor vehicle accident which he attributes to his inattention.” His significant other reported that the Veteran had been spending money impulsively. A March 2014 VA clinical record reflects that the Veteran reported that he cannot sleep, cannot concentrate, and has “really bad nightmares”. It was noted that the Veteran had a support system which included a female friend, and five or six other friends. He had not used alcohol in six months. There was no reported suicidal or homicidal ideation, and no apparent psychotic symptoms. The Veteran was oriented, had appropriate affect, and had intact insight and judgment. His speech was normal, and he was pleasant and cooperative. April 2014 VA clinical records reflect that the Veteran was “very weary” and reported concentration and sleep difficulties. His only reported stressor was school. His thought process was logical and goal-directed albeit slow, and he was described as anxious and depressed but also optimistic. His insight and judgment were intact (limited to fair), his reliability was uncertain, and his speech was coherent. He did not have hallucinations. The Veteran reported that he was much more irritable (to include frequent yelling and throwing objects) since a change in medication. He was oriented to all spheres. He did not have suicidal or homicidal ideation. A May 2014 record reflects that the Veteran reported that he was feeling better, that Gabapentin had made him aggressive and lethargic, that he was in school, and that he was working part-time at night. In July 2014, the Veteran reported that he was “much better”, his sleep was “ok” with medications, and he had no reported outbursts or dyscontrol due to irritability. A September 5, 2014 VA clinical record reflects that the Veteran requested a medication renewal and reported that he would be leaving the state for six weeks due to work. He denied suicidal or homicidal ideation. A September 15, 2014 telephone contact record reflects that he called for a referral to an inpatient PTSD treatment program, that he was currently unemployed, and recently felt depressed. He reported that the last week he had binged on alcohol, cocaine, and heroin. Despite problems with his medication and/or lack thereof, and his numerous symptoms, the Veteran did not have total social impairment during this rating period. He was able to maintain a relationship with a girlfriend, and have at least five friends who were a support system. The preponderance of the evidence is against a finding of total social impairment. Moreover, he was able to maintain employment for a period of time. The Board has considered the symptoms listed as examples in the rating criteria for a 100 percent evaluation and notes that the Veteran did not have those symptoms or symptoms which rise to the same level of severity. He did not have gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, disorientation to time or place, or memory loss for names of close relations, own occupation, or own name. From February 1, 2015 to May 1, 2016 Records during this time period are against a finding of total occupational and social impairment; thus, a rating in excess of 70 percent is not warranted. Records show that the Veteran had a normal affect and was smiling when seen for a primary care visit (see February 2015 VA record), and that despite anxiety, irritability issues, and not working or attending school, the Veteran was spending time walking his dog and seeing his children on weekends, had goal-directed thought process, had no suicidal ideation, had no homicidal ideation, was alert, was oriented, had intact insight, and had intact judgment. He also continued to attend AA meetings approximately six times a week (see March 2015 VA record). April 2015 records reflect that the Veteran reported that he had a couple of panic attacks (to include at a supermarket), really bad anxiety, and at one point, he had not showered or left bed for two days. However, he reported his irritability was better, and that he remained abstinent from alcohol and drugs. He reported that he had moved to his own apartment with his dog. While he reported that that he was a “mess” due to anxiety, he was, however, noted to be alert, oriented, and had insight and judgment. He did not have suicidal ideation, homicidal ideation, hallucinations, or delusions. An April 2015 VA examination report reflects that the Veteran had numerous symptoms to include depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, comprised abstract thinking, impaired judgement, impaired thinking, inability to establish and maintained effective relationships (although this was later contradicted in the examination report and is contrary to the evidence as a whole), suicidal ideation, obsessional rituals which interfere with routine activities (although none were actually specifically noted), and impaired impulse control with violence. The examiner found that the Veteran symptoms caused occupational and social impairment with deficiencies in most areas, which correlates to a 70 percent rating. The Veteran reported that he sees his children one weekend day/month due to nightmares and anxiety (they lived in a different state), and that he has “good relationships with all family members”. He reported a girlfriend of three months in duration, and that he has friends that he has known for six to seven years that he sees twice a week. An April 2015 Social Security Administration record reflects that the Veteran reported symptoms to include panic attacks, explosive anger, fear of large crowds, anxiety, flashbacks, and depression. He reported that he cannot pay his bills because he has a hard time remembering to do so and always mishandles money and is very impulsive with it. However, he was able to live alone in an apartment, prepare his own meals daily with the microwave, care for his children every other weekend, and take care of feeding and walking his dog. He also left his home daily (walking, using public transportation, and riding in a car), and spent time “hanging out” with others at home a “couple times a week”. In addition, as noted by the Veteran’s brother, the Veteran had a girlfriend, would go out to eat a couple times a week with his brother, and would do “normal parenting activities” with his children when he was with them during scheduled visits. May 2015 records reflect that the Veteran was looking for work but was unable to or work or hold a job for more than a week. He also reported his anxiety was getting worse, and that he had periodic suicidal thoughts but denied an intention. A July 2015 record reflects that his girlfriend was going to move in with him and help pay the rent. Records in February 2016 reflect that the Veteran reported “I’m losing it,” and “I’m losing my mind.” It was noted that since he had stopped taking medication in the past six weeks, he had an increase in symptoms. He reported feeling edgy, irritability, and having poor impulse control, road rage, mood lability, poor sleep, that he loses his temper easily, has high feelings of anxiety with frequent panic attacks, and has low energy, poor motivation, and depression. He had logical goal-directed thought processes, denied suicidal or homicidal ideation, was alert and fully oriented, denied hallucinations, and had normal speech. The record reflects that the Veteran reported that he “endorsed hopelessness for approximately 1.5 months. It was also noted that he was training a dog to be a service/emotional support dog, was expecting a baby with his girlfriend, but that he had not seen his own children because his ex-wife refused to allow him to be with them if he was unmedicated. A March 2016 record reflects that the Veteran reported that he was feeling well with regard to his PTSD. An April 2016 VA mental health record reflects that the Veteran reported poor sleep but increased energy. He was mildly disheveled, talking at a somewhat increased rate, but was now taking his medication on a consistent basis. He denied thoughts of hurting himself or others. He had normal speech, goal-directed and logical thought profess, no delusions, no hallucinations, intact cognition, fair insight, and fair judgement. The Veteran reported that when he first started taking a new medication, he had been very emotional, but since then, it had been “a lot better.” Despite the Veteran’s numerous symptoms, to include suicidal thoughts and feeling hopeless at times, he did not have total social impairment during this rating period. He was able to maintain a relationship and get married, live alone until his relationship progressed further and they lived together, and continue to have friends. Again, the Board has considered the symptoms listed as examples in the rating criteria for a 100 percent evaluation and notes that the Veteran did not have those symptoms or symptoms which rise to the same level of severity. Conclusion The Board has considered all of the Veteran’s reported symptoms and statements to include work difficulties, anxiety, irritability, sleep difficulties, that his medication was not always helpful. The Board also notes that the Veteran’s symptoms may wax and wane depending on medication use. However, despite the severity of his symptoms (even considering if he was not taking medication), the Veteran has been able to continue a relationship with a girlfriend, who then became his wife, have friends with whom he socializes, train a service dog, maintain a relationship with his brother whom he sees weekly, and have “good relationships” with all family members. The preponderance of the evidence is against a finding of total social impairment. The Board also notes that the Veteran’s 70 percent evaluation is meant to compensate him for symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; near continuous panic or depression affecting the ability to function independently; impaired impulse control (such as unprovoked irritability with periods of violence); 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 which causes deficiencies in most areas. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Wishard