Citation Nr: 18156250 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 16-63 170 DATE: December 11, 2018 ORDER A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT For the entire period on appeal, the occupational and social impairment from the Veteran’s PTSD has more nearly approximated deficiencies in most areas. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 2002 to December 2004, to include service in Iraq from August 2003 to April 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The RO granted service connection and a 30 percent rating for PTSD, effective February 17, 2011. In November 2016, while the Veteran’s appeal was pending, the RO increased the rating for PTSD to 70 percent, effective from February 17, 2011. The Board notes that the agency of original jurisdiction (AOJ) furnished the Veteran a statement of the case relative to the matter herein decided in November 2016. Although additional evidence has been added to the record since that time, none of it bears meaningfully on the outcome of the present appeal. As such, there is no need to return the case to the AOJ for consideration of the new evidence or, alternatively, to solicit a waiver of AOJ review from the Veteran. See 38 C.F.R. §§ 19.31, 20.1304(c). Entitlement to a rating in excess of 70 percent for PTSD. The Veteran has asserted that his PTSD symptoms are worse than contemplated by the currently assigned rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2018). Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s PTSD was assigned an initial rating of 70 percent, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 70 percent rating 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 rating is warranted where there is 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. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit stated that “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.” “Although the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of [occupational and social] impairment.” Id. In January 2011, a VA health care provider diagnosed the Veteran with PTSD, depressive disorder, and alcohol dependence. At the time, the Veteran had endorsed symptoms of recurrent intrusive images or thoughts, distressing dreams, avoidant behaviors, diminished interest in activities, feelings of detachment/estrangement from others, sense of foreshortened future, difficulty sleeping, depressed mood, irritability or outbursts of anger, difficulty concentrating, hypervigilance, exaggerated startle response, suicidal ideations, decreased appetite and weight loss, and low self-esteem. His recent and remote memory were observed to be intact. He displayed fair judgment and limited insight. He currently lived alone. He reported that he had an unstable relationship with his common law wife since 2004 and they had two children. The Veteran was afforded a VA psychiatric examination in June 2011. The examiner noted that the Veteran was currently involved in a positive long-term relationship and was actively involved in the lives of his two sons. However, his girlfriend insisted that he seek VA treatment after he reportedly “treated her badly.” He had a limited number of friends. He enjoyed hunting and fishing. He had been employed as a truck driver for five years. However, he related that short-term memory loss impacted his ability to complete job-related tasks. He reported having suicidal thoughts in the past. In addition, he endorsed symptoms of depression, sleep impairment, avoidant and isolative behaviors, and hypervigilance. The Veteran was able to maintain minimal personal hygiene and other basic activities of daily living. He acknowledged alcohol use. The examiner diagnosed continuous alcohol dependence which did not an effect on his social and occupational functioning. She stated that the Veteran did not endorse enough symptoms to meet the criteria for PTSD. She added that the Veteran’s daily use of alcohol could be the root cause of his memory impairment and played a significant role in causing his symptoms of depression. A review of VA treatment records shows that the Veteran presented to the Emergency Room with complaints of suicidal thoughts and worsening depression in July 2012. In addition, the Veteran endorsed symptoms of poor sleep, nightmares, irritability, anger, hopelessness, an inability to get along with others, daytime reexperiencing in flashbacks, avoidance, and social withdrawal. He reported that he tried to “roll his car” in 2006 but had made no other suicidal attempts. He was observed to exhibit fair to poor concentration, judgment, and insight. However, the Veteran’s short- and long-term memory were intact. He was diagnosed with PTSD and severe major depressive disorder. In an August 2012 VA therapy session, the Veteran endorsed ongoing nightmares, sleep disturbance, low mood, anger, irritability, hypervigilance, avoidant behaviors, and lack of interest in activities. He shared that he did not like talking to others, that his girlfriend recently left him, and that he rarely spoke to his family. He admitted to frequent verbal outbursts and past incidences of getting into physical altercations, to include a fist fight as a result of a “road rage” incident in February/March 2012. The Veteran underwent a private psychiatric evaluation in January 2014. The Veteran reported that he had never been married. He stated that he struggled in his current long-term relationship with his girlfriend because he was a private person and loner. As a truck driver, he reported that he had the flexibility to drive a truck or work in an office setting. He related that he struggled to get along with his coworkers; however, his job allowed him to isolate from others. He stated that his supervisors and coworkers were aware that he preferred to be left alone. He remarked that he had an “‘explosive temper’” and that his family and co-workers were aware of his issues with anger. In addition, the Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flashbacks, mild memory loss, impairment of short- and long-term memory, flattened affect, disturbances of motivation and mood, overt visual and auditory hallucinations, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control, neglect of personal appearance and hygiene, and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The psychologist noted that the Veteran self-medicated with alcohol for PTSD symptoms and that his judgement was poor. She determined that the Veteran had occupational and social impairment with deficiencies in most areas. In November 2016, the Veteran was provided an additional VA psychiatric examination. Since the last VA examination, the Veteran reported that he was homeless and lived in his truck. He was not currently involved in his long-term relationship with his girlfriend. He stated that she would not allow him to see his two sons. He related that he had one friend and had not been in contact with family members. He stated that he did not do much of anything in his free time. He suspected that he would soon lose his job because he was “forgetting stuff.” He endorsed symptoms of anxiety, chronic sleep impairment, intrusive distressing memories, avoidant behaviors, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, and irritable behavior and angry outbursts. The examiner determined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Upon review of the record, the Board finds that the functional impairment occasioned by the Veteran’s PTSD most closely approximates occupational and social impairment with deficiencies in most areas. The evidence reflects that his PTSD has been manifested by depression, anxiety, anger, irritability, avoidance, isolative behaviors, chronic sleep impairment, nightmares, disturbances of motivation and mood, hypervigilance, impaired judgment and insight, impaired concentration, impairment of short- and long-term memory, impaired impulse control, suicidal ideations, difficulty in adapting to stressful circumstances, neglect of personal appearance and hygiene, and an inability to establish and maintain effective relationships. There is no indication from the record that the Veteran has had total occupational and social impairment due to his PTSD. There is no evidence that he has been disoriented or has exhibited symptoms equivalent to gross impairment in thought processes, communication, or memory. Neither has he exhibited symptoms functionally equivalent to delusions, hallucinations, or grossly inappropriate behavior. While he has expressed suicidal ideation, the evidence does not reflect that he has been in persistent danger of hurting himself or others. In addition, although a private psychologist has indicated that the Veteran had an intermittent inability to perform activities of daily living, this contention was not evident throughout the Veteran’s VA mental health treatment and at the June 2011 and November 2016 VA examinations. In sum, there is no evidence of total social and occupational impairment. Therefore, the Board finds that a rating in excess of 70 percent for PTSD is not warranted. 38 C.F.R. §4.130, Diagnostic Code 9411. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration has also been given to the Veteran’s entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). In this regard, the Board notes that the Veteran has not responded to the RO’s request for additional information regarding his employment history and the circumstances of the reported loss of his job in November 2016. Lacking that information, there is no evidentiary basis for an award of a TDIU. Accordingly, the Board finds that a rating in excess of 70 percent for PTSD is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, Associate Counsel