Citation Nr: 20002880 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-04 023 DATE: January 14, 2020 ORDER Prior to August 9, 2018 entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. From August 9, 2018 entitlement to an evaluation in excess of 70 percent for PTSD is denied. FINDINGS OF FACT 1. Prior to August 9, 2018, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. From August 9, 2018 the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to August 9, 2018, the criteria for a disability rating in excess of 30 percent for PTSD 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 (2018). 2. From August 9, 2018, the criteria for a disability rating in excess of 70 percent for PTSD 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 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from June 1966 to June 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in August 2019, at which time the Board remanded the issues currently on appeal for additional development. The case has now been returned to the Board for further appellate action. In his January 2016 substantive appeal, the Veteran requested that he be afforded a hearing before a member of the Board. The Veteran was scheduled for his requested hearing. However, in a May 2019 statement, the Veteran withdrew his request for a hearing in writing. Entitlement to an increased rating for PTSD. The Veteran asserts that his PTSD is worse than currently rated. In a November 2013 rating decision, the Veteran was assigned a 30 percent disability rating effective July 9, 2013. He filed a timely notice of disagreement (NOD) to the assignment of the 30 percent rating. In a July 2019 rating decision, the Veteran was assigned a 70 percent disability rating, effective August 9, 2018. This matter was remanded in an August 2019 Board decision, to determine the nature of the Veteran’s substance abuse disorder; and whether such was a separate disability or secondary to the Veteran’s service-connected PTSD. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2 ; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 ; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 ; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, the rating agency shall consider the frequency, severity and duration of psychiatric symptoms, the length of remissions and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a) (2018). The Veteran’s PTSD is rated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411. When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In relevant part, the rating criteria are as follows: A rating of 30 percent is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally performing satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A rating of 50 percent is assigned for 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-term 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; difficulty in establishing and maintaining effective work and social relationships. A rating of 70 percent is assigned for 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 worklike setting); inability to establish and maintain effective relationships. A rating of 100 percent is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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. At the Veteran’s initial November 2013 VA examination in connection with his service connection claim, the Veteran reported difficulty falling or staying asleep, irritability or outbursts, depressed mood, chronic sleep impairment as well as recurrent distressing dreams and avoidance behavior. The examiner diagnosed occupational and social impairment with reduced reliability and productivity and reported a separate alcohol abuse disorder. The examiner reported that both the PTSD as well as alcohol abuse likely contributed to the Veteran’s functional impairment. He noted however, that the Veteran’s presentation was consistent with exaggeration or malingering. In VA treatment records throughout the period on appeal, the Veteran primarily endorsed symptoms of depression, mood lability, anxiety, hypervigilance, flashbacks and impairment in concentration. However, on examination he routinely presented as cooperative, appropriately dressed, and in no acute distress. Speech was regularly documented as normal in rate and volume. Mood was described as anxious with a congruent affect and distractible attention. However, thought process and content were consistently described as normal and goal oriented without evidence of auditory or visual hallucinations. Judgment and insight were reported as fair. In a September 2019 Disability Benefits Questionnaire (DBQ), a private examiner documented depressed mood, anxiety, panic attacks more than once a week, flattened affect, impaired judgment, difficulty understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and adapting to stressful circumstances. The examiner also documented suicidal ideation, impaired impulse control, persistent delusions or hallucinations, danger of hurting himself and neglect of personal appearance. The provider documented that the Veteran had been sober since a recent hernia surgery. The provider diagnosed PTSD, major depressive disorder (MDD) and alcohol use disorder, in sustained remission and concluded the Veteran suffered from total occupational and social impairment. He opined that the symptoms of the Veteran’s mental health conditions overlapped. At a separate September 2019 VA examination, the Veteran reported that he was divorced and had been living with his brother until relocating from Florida to Kentucky by himself. The Veteran described one friend and few hobbies or social involvements but elaborated that his COPD and breathing problems were a limiting factor to many activities he previously enjoyed. Contrary to the findings of the private provider, the Veteran denied any inability to conduct his own activities of daily living, including bathing, grooming, cooking or shopping due to his psychiatric disability. He, in fact, noted traveling alone when he relocated from Florida to Kentucky, including traveling by himself to visit his son in Tennessee. He also denied any suicidal ideations and the examiner explained that the hallucinations documented in the private DBQ were more aptly described as negative thoughts rather than actual voices associated with a psychosis. Occupationally, he had been employed with the Ford Motor Company in various positions between his return from service and his official retirement in 2007. He relayed a long history of substance abuse; namely alcohol, which he gave up in 2017. He relayed that his mental health treatment has consisted of medication management. The Veteran currently endorsed symptoms of depression, anxiety, suspiciousness, intrusive thoughts of service, avoidance behaviors, and hypervigilance. He also endorsed mood lability and loss of interest in some activities, including car repairs due to physical limitations which resulted from losing several fingers in a farming accident. On examination, the Veteran presented as clean and neatly groomed. His speech was observed to be coherent, normal in rhythm and volume without speech difficulties. He was further described as cooperative and attentive with stable mood. Thought processes and content were described as logical and coherent without evidence of thought dysfunction. Impulse control was described as good without any recent history of outbursts. The examiner noted that the Veteran appeared to be experiencing reduced symptomatology associated with his PTSD and mild depressive symptoms as compared to his last VA examination. He also noted that the Veteran’s separate substance abuse disorder was in sustained remission. Regardless, as the Veteran has indicated that he completely stopped drinking in 2017, there are no symptoms attributable to a substance abuse disorder which could be shown to aggravate the service-connected PTSD. He concluded that the Veteran only suffered from occupational and social impairment due to mild or transient symptoms. On the above, the evidence of record does not reflect that the Veteran’s symptoms warrant a rating in excess of 30 percent during the period of the claim prior to August 9, 2018. In this regard, the evidence does not reflect that the Veteran’s symptomatology more nearly approximated occupational and social impairment reduced reliability. The Veteran did not show impaired judgment and thinking, he did not have suicidal or homicidal ideation, he did not exhibit obsessional rituals which interfered with routine activities, and he did not have delusions. There was no indication from the record that the Veteran was unable to maintain his personal hygiene. The Veteran’s symptoms were documented as largely stable throughout the relevant period and consisted primarily of mild depression and anxiety, attributable to his PTSD and his COPD. The Board acknowledges that the November 2013 VA examiner was unable to determine a level of functioning; however, he elaborated that the Veteran’s presentation during the examination and scoring on the personality tests was consistent with malingering or exaggeration of symptoms. Regardless, the Veteran has not submitted any private or VA treatment records indicating impairment consistent with reduced reliability and productivity. Therefore, the Board finds that a rating in excess of 30 percent is not warranted at any time during the period of the claim prior to August 9, 2018. The evidence of record does not reflect that the Veteran’s symptoms warrant a rating in excess of 70 percent during the period of the claim beginning August 9, 2018. In this regard, the record does not reflect that the Veteran experiences gross impairment in thought process or delusions. The Veteran has not continued to endorse persistent thoughts of wanting to hurt himself or others. The Veteran did not exhibit persistent disorientation or difficulties with memory of his name or that of his family. The Board fully recognizes that the listed symptoms for a 100 percent schedular rating are not all encompassing, and their presence is not necessarily determinative. However, the Veteran’s symptoms must cause total occupational and social impairment, in order to warrant a 100 percent rating. The Board also acknowledges the findings of the September 2019 private DBQ completed by Z.G., a licensed mental health counselor which documents total occupational and social impairment, including symptoms of suicidal ideation, visual hallucinations and inability to complete activities of daily living. However, the Board finds the September 2019 VA examination conducted by J.B., a licensed VA psychologist to be more probative. She objectively and thoroughly reviewed the Veteran’s file, including his VA treatment records, the private DBQs, and conducted an extensive interview with the Veteran. She noted that he denied homicidal ideation or intent; clarified the nature of his “hallucinations”; and, noted that his overall presentation was inconsistent with many of the findings in the DBQ. In this regard, she relayed that the Veteran presented as clean, groomed and appropriately dressed, he indicated he currently lived alone and was noted to be capable of managing his finances and chores on his own; he had independently traveled between Kentucky and Florida, making a stop in Tennessee to visit his son, and relayed occasionally spending time with his neighbor. Lastly, there was no documented evidence of any memory impairment as the Veteran easily recalled events of his childhood through the present. Occupationally, the Veteran was retired and there was no evidence that his psychiatric disability had interfered with his occupational functioning prior to retirement in September 2007. The Board has acknowledged the level of impairment experienced by the Veteran with respect to the symptoms of a 70 percent rating; however, the Board finds that the evidence of record does not support a 100 percent rating, for any part of the rating period on appeal. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013) (“[38 C.F.R.] § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas”). David Gratz Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.