Citation Nr: 18154941 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 17-52 118 DATE: December 4, 2018 ORDER Entitlement to a rating in excess of 70 percent for service-connected post-traumatic stress disorder (PTSD) is denied. FINDING OF FACT Throughout the duration of the appeal, the Veteran’s service-connected PTSD resulted in occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to a rating increase in excess of 70 percent for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service in the United States Army from April 1952 to September 1954. He served overseas in the Korean War and was awarded a Korean Service Medal, among other commendations. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Board initially remanded the issue in March 2018 for an additional VA examination and a request for updated treatment records. On October 18, 2018, the Veteran requested an additional thirty days to submit additional evidence in support of his claim, and has since provided a brief with accompanying medical opinions that were previously submitted to the record either in part or full. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Rating 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 (2017). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule but findings sufficient to identify the disease and the resulting disability, and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2018); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern for claims seeking an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability must be considered, past medical reports do not have precedence over current examinations. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Furthermore, the VA has a duty to consider the possibility of assigning staged ratings in all claims for increased disability ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126 (a). The effect of these elements on the veteran’s occupational and social functionality must be interpreted, not solely on the examiner’s assessment of the veteran’s degree of disability at the moment of the examination. Id. Furthermore, a rating cannot be assigned solely on the basis of social or occupational impairment; instead, both must be sufficiently impaired according to the rating schedular guidelines. See 38 C.F.R. § 4.126 (b); see 38 C.F.R. § 4.130. The considerations within the Board’s general rating formula for mental disorders is not inclusive of all personal and psychological factors considered in assigning a veteran a disability rating, nor does it provide a checklist of required manifestations and impairments. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Instead, the Board’s basis for determining a Veteran’s appropriate rating levels is inclusive of all opinions, lay statements, and psychological statements within the record to determine the degree of social and occupational impairment. The Veteran’s service-connected PTSD has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides: A 70 percent disability rating is warranted when the Veteran experiences 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 work-like setting); and inability to establish and maintain effective relationships. Id. § 4.130. A 100 percent disability rating is warranted 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. Id. To the extent suicidal ideation is considered when determining a Veteran’s degree of occupational and social impairment, it must manifest such that it presents a “persistent danger” of harm. Bankhead v. Shulkin, 29 Vet. App. 10, 21 (2017) (quoting 38 C.F.R. § 4.130). Suicidal ideation, as defined by VA, is “thoughts of engaging in suicide-related behavior,” with “[v]arious degrees of frequency, intensity, and duration.” Dep’t of Veterans Affairs & Dep’t of Defense, VA/Dod Clinical Practice Guideline for Assessment and Management of Patients at Risk for Suicide 13 (June 2013). In cases where a Veteran is seeking a rating for 70 percent or 100 percent, a distinction must be made between suicidal ideation and persistent risk of self-harm, respectively. Bankhead, 29 Vet. App. at 21. A holistic analysis of a Veteran’s symptoms and medical history must be considered in determining the likelihood of suicidal risk. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116¬—17 (2013). In March 2014, the Veteran’s claim for service-connected PTSD was denied based on an absence of a psychological examination and diagnosis within the record. The Veteran was then examined in May 2014 by a private psychologist, who diagnosed the him with PTSD, and attributing the disability to the Veteran’s time in service. During the examination, the Veteran described his time stationed in Korea as a horrific nightmare and reported his current symptoms as nightmares, chronic sleep impairment, depression, anxiety, panic attacks, and decreased motivation to engage in social activities. Once professionally diagnosed, the Veteran was granted service-connection for PTSD with a rating of 70 percent following a VA examination that supported the private psychologist’s diagnosis. This VA examination identified that the Veteran experienced occupational and social impairment with reduced reliability and productivity due to his PTSD. The examiner also noted that the Veteran’s condition was improved by medication, but that the Veteran continued to experience difficulties with moderate anxiety, depression, insomnia, and recurrent intrusive thoughts and dreams regarding traumatic in-service events and “intermittent suicidal ideation without plan.” Following the rating decision that granted a 70 percent disability rating, the Veteran filed a Notice of Disagreement seeking an increase to 100 percent. An additional private examination was obtained in December 2016, where the psychologist opined that a 100 percent PTSD rating was warranted based on an inability to manage activities of daily living, visual hallucinations, and the previously mentioned sleep and socialization impairments. In deciding this issue in the first instance, the Board remanded for an additional medical examination to provide additional insight into the Veteran’s present disability. The VA examiner noted that the Veteran was fully oriented to person, place, time, and circumstances and that his speech was clear and direct. Psychologically, an improvement in the Veteran’s PTSD was noted, with no reference to hallucinations, delusions, or difficulty understanding the examiner. The examining physician summarized the Veteran’s PTSD as “mild or transient” with “decrease[d] work efficiency and ability to perform occupational tasks only during periods of significant stress,” which equates to a 10 percent disability rating. Additionally, the Veteran’s PTSD symptoms were mitigated by his medication. There is no indication of psychiatric hospitalization or suicide attempts, and the Veteran has ceased taking prescribed PTSD medication as of 2016. The Veteran is also no longer engaged in mental health treatment. However, the Veteran still suffers from depressed mood, chronic sleep impairment, disturbances of mood, and a dependency on his wife to assist in some daily or stressful situations, including socializing in crowed areas. The Board finds that the Veteran’s PTSD has resulted in considerable social impairment with deficiencies in most areas; however, the evidence does not show total occupational or gross impairment in thought processes or communication. Despite the Veteran’s symptoms, he has been able to handle some daily activities, maintained communication with family members, successfully worked for several years, and has been able to maintain a few close relationships. His thought processes and ability to communicate have not been significantly impaired, nor does he exhibit grossly inappropriate behavior, a persistent danger of hurting himself or others, or memory loss for names of close relatives. The Veteran had developed a drinking disorder while in the military, using alcohol as self-medication to cope with his undiagnosed PTSD; however, he gave up alcohol all together in 1989 and has remained sober since and experienced no suicide attempts since becoming sober. Physicians have noted within the Veteran’s medical examinations that his thought process was clear and direct over the course of the entire record. While the Veteran has previously referenced thoughts and desires to cease living, he has not presented any recent evidence indicating that he has acted upon these ideations after giving up alcohol 29 years ago. Recently submitted evidence included a brief with additional excerpts from the previously submitted December 2016 medical examination, which paints a drastically different picture of the Veteran’s current wellbeing when compared to other medical examinations within the record. The December 2016 exam assessed the Veteran’s degree of occupational and social impairment, while also enumerating the persistent symptoms of the Veteran’s service-connected PTSD. After examining the Veteran, this examiner stated that the Veteran is completely impaired both socially and occupationally, and that he experiences routine hallucinations, moments of being “in a daze,” frequent nightmares, an inability to manage daily activities without assistance, and a multitude of other persistent symptoms. While the Board finds this medical examination to be competent and targeted towards the issues within the claim, it must acknowledge the degree that this exam deviates from others medical exams conducted around the same period of time. All of the symptoms mentioned within the December 2016 exam are recognized symptoms of PTSD and are taken into consideration when contemplating a rating increase; however, the frequency and severity of these symptoms and impairments run contrary to the September 2018, July 2018, May 2018, June 2016 reports, and even those symptoms identified when first diagnosed with PTSD in December 2014. While each of these medical examinations fluctuated slightly, both in terms of the Veteran’s present state of being and suggested ratings, none of these exams illustrated a symptomatology that conformed to those identified in the medical examinations cited to within the Veteran’s brief. Furthermore, neither the VA or private examinations outside of the aforementioned December 2016 medical exam, expressed or implied a concern that the Veteran’s suicide ideations presented a persistent danger or harm to either himself or others. While these ideations are unquestionably linked and impacted by the symptoms of the service-connected PTSD, the evidence nevertheless shows that there has not been a total obstruction to the Veteran’s performance of social and occupational activities. The Veteran has maintained both family and friends, while noticeably able to maintain both hygiene and conversations beyond the most basic level of communication. When the private examiner found that there was total social impairment, he did not explain why this is the case, while the Veteran maintained positive relationships with his wife and other family members. When the Board is confronted by conflicting evidence from credible sources that contain thorough and targeted explanations of medical opinions, it must weigh all evidence equally and view the record in its entirety. Here, the voluminous evidence from equally credible medical physicians, particularly those who examined the Veteran more recently, must dictate that the Board consider the December 2016 and February 2018 medical exams as outliers. See Bankhead v. Shulkin, 29 Vet. App. 10, 21 (2017). This conclusion is also supported by the lay evidence contained within the record and the Veteran’s factual employment and family history. After receiving his honorable discharge, the Veteran was employed to paint steeples, boats, and yachts for 54 years, and later was gainfully self-employed until the age of 62. The Veteran has fathered four children and has been married for 52 years. Additionally, he attends church weekly and “enjoys giving away candies to ladies and kids while he is on his scooter with his [c]hihahua.” There is no indication that the Veteran has ever lost a job due to workplace conflict, in fact the Veteran was working consistently up until his sixties. The Veteran is also able to communicate with treatment providers despite his anxiety and depression. Based on the totality of the evidence provided, the Board finds that the Veteran is capable of maintaining adequate personal care and hygiene; has not made any suicide attempts; experiences no homicidal or paranoid ideations; and that his memory is grossly intact. The Board has considered the benefit of the doubt doctrine. The Board acknowledges the improvements to the Veteran’s mental health, as stated in the 2018 VA examination, and acknowledges the persistent and erratic-behavioral impairments imposed by the service-connected PTSD. However, because functional impairment is not comparable to total occupational and social impairment, the Board finds the evidence is against assigning a disability rating in excess of 70 percent. 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is currently in receipt of 70 percent disability rating for his PTSD, which should accommodate for his mental health disability symptoms. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Lherault, Associate Counsel