Citation Nr: 20006844 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 19-11 750 DATE: January 28, 2020 ORDER Entitlement to a disability rating higher than 70 percent for the service-connected posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran’s PTSD symptoms have not more closely approximated total occupational and social impairment at any time during the current appeal period. CONCLUSION OF LAW The criteria for a disability rating higher than 70 percent for the service-connected PTSD have not been met at any time during the entirety of the appeal period. 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 had active service from January 1999 to June 1999, and from July 2000 to January 2011. This matter is on appeal from an August 2017 rating decision. In the August 2017 rating decision, a VA Regional Office (RO) decreased the Veteran’s disability rating for his PTSD from 70 percent to zero percent, with a November 1, 2017 effective date. It was indicated in the decision that this rating reduction was done primarily because the Veteran failed to report for his scheduled December 2016 VA examination to assess the severity of his PTSD. In his December 2017 notice of disagreement, the Veteran expressed disagreement with the rating deduction and requested an increased evaluation for his PTSD. In a March 2019 Decision Review Officer decision, the Veteran’s PTSD rating was increased from zero percent to 50 percent, effective November 1, 2017. The Board remanded the issues of whether the reduction in rating from 70 percent to 50 percent, effective November 1, 2017, was proper and of entitlement to a rating higher than 50 percent prior to November 1, 2017, and a rating higher than 70 percent since November 1, 2017, for PTSD. A September 2019 rating decision increased the Veteran’s evaluation from 50 percent to 70 percent disabling, effective November 1, 2017. As the Veteran’s 70 percent rating was fully restored, the rating reduction issue is no longer before the Board. The Veteran’s service-connected PTSD remains evaluated as 70 percent disabling, which is less than the maximum available benefits that can be awarded. The Veteran has not withdrawn his appeal. Accordingly, this increased rating issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993) (indicating that a Veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). The Veteran contends that the severity of his PTSD symptoms warrants a higher disability throughout the appeal period. See April 2019 VA Form 9. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Where there is a question as to which of two ratings shall be applied, 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 (2018). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2018). The Veteran’s PTSD has been rated at 70 percent under Diagnostic Code 9411. 38 C.F.R. § 4.130 (2018). The criteria of Diagnostic Code 9411 provide for a 100 percent rating where the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. The psychiatric symptoms listed in the above rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Global Assessment of Functioning (GAF) score is a scale indicating the psychological, social, and occupational functioning on a hypothetical continuum of mental health and illness. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Effective August 4, 2014, DSM-5, which eliminated the use of GAF scores, has been implemented. VA treatment records, dated January 2014 to November 2016, show that the Veteran underwent mental health evaluations and PTSD screenings in January 2014 and February 2014. During the January 2014 mental health screening, it was noted that the Veteran’s mood was happy; his affect was normal; and his appearance was calm. On one of the PTSD screening tests, the Veteran reported having nightmares; that he was constantly on guard, watchful, or easily startled; and that he felt numb or detached from others, activities, or his surroundings. He later indicated that his PTSD was resolved, and he agreed to have a psychological re-evaluation. During the evaluation, he reported that he did not have suicide attempts or thoughts of killing himself. He also stated that he did not feel hopeless about the present or future. The clinician noted that he reviewed the results of the PTSD screening and personally evaluated the Veteran, including inquiry about feelings of hopelessness, suicidal thoughts, and prior suicide attempts. The clinician concluded that the Veteran did not have a mental health condition requiring further intervention. He noted that the Veteran appeared stable was not on any medication for a mental disorder. In private treatment records from Dr. P.H., dated in June 2017, it was indicated that the Veteran presented with symptoms of anxiety, fatigue, nervousness, panic attacks, shaky hands, and sleep disruption. Dr. P.H. noted that the Veteran did not experience issues such as difficulty concentrating, excessive worry, or insomnia. The Veteran’s treatment included benzodiazepines, psychotherapy, and stress management. The results of the private mental status examination show that the Veteran had appropriate mood and affect; was able to articulate well with normal speech, language, rate, volume, and coherence; and demonstrated appropriate judgment and insight. On a March 2019 VA Disability Benefits Questionnaire (DBQ), the Veteran was diagnosed with PTSD that conforms to DSM-5 criteria. He was also diagnosed with severe alcohol use disorder. The Veteran reported that, due to his mental status, he and his wife had been separated since September 2018. Specifically, he reported that his wife left him after a road rage incident in which she and the children were present in his vehicle. He stated that he and his wife got married in 2002 and share three children, and that he was making efforts to bond with his children. He indicated that he lived alone and did not have a support system, but he reported seeing his children a few days of the week. The Veteran stated that his daily activities included getting ready for work, working, and drinking. He reported that, since the last VA PTSD examination in 2011, he was fired from three jobs; however, he was employed at the time of the VA examination. As documented on the examination report, the symptoms that apply to the Veteran’s PTSD include, anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. Other symptoms indicated were overeating; a great deal of time spent obtaining, using or recovering; social or interpersonal problems; physical or psychological problems caused or exacerbated by alcohol; tolerance; and withdrawal. On examination, the Veteran was described as appropriately groomed with normal motor activity; no abnormal movements were noted. His mood was normal and appropriate; and his affect was stable and of normal range and intensity. His speech was spontaneous, with normal tone, volume, rate, and rhythm. The Veteran’s thought process was described as logical, linear, and goal-directed; and no formal thought disorders were indicated. His thought content was appropriate, and orientation was noted as awake, alert and oriented to person, place, and time. Both insight and judgment were noted as good. No hallucinations or illusions were indicated, and the Veteran reported that he did not have suicidal or homicidal ideation. The examiner indicated that the Veteran’s PTSD results in occupational and social impairment with reduced reliability and productivity. Given the above, VA treatment records, private treatment records, and the March 2019 assessment of the severity of the Veteran’s PTSD fall squarely in the rating criteria for a 70 percent rating. The Veteran’s treatment records and VA examination did not report any symptoms indicative of a 100 percent rating. The results of the March 2019 VA examination show that the Veteran’s PTSD causes occupational and social impairment with reduced reliability and productivity, but none of the symptoms reported indicate total occupational and social impairment. Although the Veteran stated that he was fired three times since 2011, there is no indication that he has problems obtaining and maintaining steady employment. He has also maintained a relationship with his children and sees them a few days of the week. Thus, he does not have total occupational and social impairment. In addition, the Veteran does not specifically assert that his PTSD symptoms warrant a 100 percent disability rating. Instead, he asserts that his symptoms were underrepresented in the March 2019 VA examination and that those symptoms, including suicidal ideation, more closely approximate a 70 percent rating. See VA Form 9 lay statement. Accordingly, the Board assigns probative value to the VA and non-VA medical treatment reports of record, which show no evidence to indicate that the Veteran’s PTSD has resulted in total occupational and social impairment at any time during the current appeal period. Hayes v. Brown, 9 Vet. App. 67 (1996). The VA treatment examiners indicated that they reviewed the Veteran’s medical history and utilized the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Although the Veteran’s PTSD has resulted in significant occupational and social impairment, the severity, frequency, and duration of his symptoms have not more closely approximated total occupational and social impairment at any time during the current appeal period. Thus, a 100 percent rating is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues, unless they are specifically raised by the claimant or reasonably raised by the evidence of record). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, Associate 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.