Citation Nr: 20021872 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 17-18 480 DATE: March 27, 2020 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The most probative evidence does not reach the level of equipoise as to whether the Veteran’s PTSD manifested functional impairment to the extent that a rating in excess of 70 percent is for application. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1993 to March 1997. The Board thanks him for his service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107. In February 2019, the Board denied entitlement to a rating in excess of 70 percent for PTSD. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court granted a Joint Motion for Remand (JMR) in which the parties agreed, among other things, that the Board had erred by relying on a Global Assessment of Functioning (GAF) score to deny a higher rating, failing to consider whether a new VA examination was warranted, failing to discuss lay evidence, and failing to adjudicate entitlement to an intertwined total disability rating for compensation purposes based on individual unemployability (TDIU). In November 2019, the Board remanded the claim for a higher rating for PTSD for further development, including a VA examination and adjudication of the intertwined TDIU. In December 2019, the agency of original jurisdiction (AOJ) granted entitlement to a TDIU from August 17, 2015, the date of the Veteran’s claim for an increased rating for PTSD. Therefore, TDIU has been granted for the entire appeal period and is no longer within the Board’s jurisdiction. The Veteran was scheduled for a VA examination in January 2020. However, he did not report for the examination, and, to date, he has not requested that the examination be rescheduled or provided good cause for his failure to appear. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds that the AOJ has satisfied its duty to assist the Veteran, and the Board will proceed with a decision on the merits. Legal Criteria – Mental Disorders Ratings for mental disorders are assigned based on the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, and 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. 38 C.F.R. § 4.126 (a). Under the General Rating Formula, a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal), due to symptoms such 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 50 percent rating 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-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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating 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 work like setting); inability to establish and maintain effective relationships. A maximum 100 percent rating 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 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. 1. Entitlement to a rating in excess of 70 percent for PTSD The Board finds that the most probative evidence does not reach the level of equipoise as to whether the Veteran’s PTSD manifested functional impairment to the extent that a rating in excess of 70 percent may be granted at any time during the rating period on appeal. Turning to the evidence of record, the Veteran underwent a VA examination in March 2014. He reported having occasional contact with family and stated that the relationships were okay. The examiner performed a mental status evaluation which showed orientation in four spheres; recent and remote memory grossly intact; attention and concentration intact; receptive and expressive language without impairment; no psychotic symptoms, hallucinations or delusional thoughts; depressed mood; tearful affect; intact social skills; and no current or recent suicidal or homicidal ideation, plan or intent. For rating purposes, the examiner found symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing work and social relationships. She determined that the Veteran exhibited occupational and social impairment with reduced reliability and productivity. VA treatment records show that the Veteran sought mental health care during the rating period. For example, in May 2014, he underwent individual psychotherapy. He reported that he was working two jobs to save money and afford his own housing, and that he had difficulty sleeping. Mental status evaluation revealed orientation in three spheres; agitated mood; guarded affect; very pressured speech; and no suicidal or homicidal ideation. The clinician noted that the Veteran was “extremely focused” on his goal of building himself financially and starting a business again, so that he will be in a financial place to see his children more often. He underwent another session in June 2014. Mental status evaluation revealed orientation in three spheres; agitated mood; guarded affect; very pressured speech; and no suicidal or homicidal ideation. The Veteran underwent a psychology consultation in April 2015. Mental status evaluation revealed casual appearance; normal gait; pressured speech; poor eye contact; appropriate behavior; good cooperation; fair rapport; thought process and memory within normal limits; orientation in all spheres; depressed, emotional, and tearful affect; no hallucinations; no paranoia; and no suicidal or homicidal ideation. A VA psychiatrist, Dr. D.G., submitted a disability benefits questionnaire (DBQ) in August 2015. He found occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. He documented symptoms for rating purposes including depressed mood; anxiety; panic attacks more than once a week; chronic sleep impairment; mild memory loss; impairment of short and long-term memory; flattened affect; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; gross impairment in thought process or communication; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. In August 2015, a psychiatric outpatient note reflects that the Veteran reported continuing to experience nightmares, intrusive thoughts, avoidance, irritability, exaggerated startle response, hypervigilance, and poor concentration. The clinician noted that the Veteran’s affect was anxious and that he could not remain in the office with the door closed during the session. The Veteran denied suicidal or homicidal ideation. A mental status evaluation in March 2016 showed that the Veteran was appropriately dressed; displayed sufficient concentration; intact recent and remote memory; orientation in four spheres; reserved and cautious behavior; clear and coherent speech; euthymic (normal) mood; appropriate, but blunted affect; relevant thought process and content; judgment within normal limits; good insight; and denied suicidal or homicidal ideation. The Veteran submitted a sworn affidavit in June 2017. He indicated, among other things, that he experienced significant anger and rage issues that made it difficult for him to interact with others, including in the workplace. He stated that he thought about suicide nearly every day, which was spurred by flashbacks about his assault. He described how his anger issues impacted his employment as a part-time driver for a ride-sharing company, and believed it was only a matter of time before the company terminated his employment because of customer complaints. For example, he indicated that he shouted at a woman who asked him to turn on the air conditioning because it was in his personal space, got into an argument with a customer about navigation, and yelled an obscenity when he realized he would not make very much money after accepting a ride request from far away. The Veteran submitted a private medical opinion in July 2017. The clinician, Dr. R.P., noted that the Veteran arrived early to the appointment, and began crying upon entering the office and continued to do so throughout the interview. He observed that the Veteran was “severely stressed” and reported having symptoms of nightmares, intrusive thoughts, severe avoidance, marked irritability, startle responses, hyper-vigilance, poor concentration, severe paranoia to the point of delusions, and sadness. The Veteran endorsed having irregular contact with his children, and stated that he was interested in medication, but is dedicated to “not being used or controlled.” He reported working part-time as a driver for a ride-sharing company, but having multiple verbal altercations, complaints, and write-ups. Mental status evaluation showed that the Veteran was generally oriented to date, month, time, and year, showed tearful and stressed disposition, had minimal spontaneous speech, and manifested scattered associations. Dr. R.P. stated that the Veteran’s “paranoia is delusional” and had impulse control that is very low and renders him unable to tolerate negative responses. The record reflects a medical opinion from Dr. J.G. dated November 2018. He opined, among other things, that the Veteran’s PTSD significantly impairs his ability to meaningfully seek out, attain, and retain gainful employment. He opined that non-governmental vocational rehabilitation statements suggested that the Veteran exhibited repetitive and grossly inappropriate anger toward co-workers, customers, and supervisors. He stated that VA vocational records provide some possible contra-indicating evidence, but asserted that they do not foreground the number of jobs that claimant has cited elsewhere, the frequency of firings, nor the “chronic nature of the episodes of hostile or physical violence towards others in the work setting.” The Board notes that Dr. J.G. did not interview the Veteran or conduct a mental status evaluation reflecting the current severity of his PTSD. In March 2019, the Veteran underwent an evaluation with a VA social worker. He reported that he recently moved to seek out affordable housing and that he had a relationship with three of his four children. Mental status evaluation showed a neatly dressed and groomed appearance, cooperative attitude and behavior, orientation in four spheres, coherent intellectual functioning and thinking process, appropriate affect, speech normal rate and rhythm, adequate judgment and insight, euthymic mood, no hallucinations, and no reports of homicidal or suicidal ideation. The Veteran had an assessment with VA psychologist in August 2019. He reported symptoms of intrusive thoughts, avoidance, nightmares, anger, anxiety, depression, startle response, and hypervigilance. Mental status evaluation showed orientation in four spheres; cooperative attitude; appropriate grooming; no psychomotor retardation; mood “depends on setting”; appropriate and congruent affect; speech in normal rate, volume, and rhythm; perceptions within normal limits; thought processes and content within normal limits; and good insight and judgment. The Veteran denied suicidal and homicidal ideation, and the psychologist found no indication that he was a danger to himself or others. Later that month, the Veteran was evaluated at a VA walk-in mental health clinic. He endorsed intermittent anxiety, depressed mood, interrupted sleep, occasional intrusive dreams and thoughts, hypervigilance, and avoidance of triggers. Mental status evaluation showed orientation in three spheres, cooperative attitude, fair hygiene and nourishment, coherent and relevant speech with normal tone and rate, euthymic mood, full affect, appropriate eye contact, linear and goal directed thought process, no suicidal and homicidal plan or intent; no delusions or hallucinations, and fair memory, insight and judgment. In November 2019, the Veteran underwent a mental status evaluation which showed adequate dress and grooming; guarded and cooperative (yet irritated) attitude and behavior, orientation in three spheres; intellectual functioning apparently intact (but not formally tested); memory apparently intact (but not formally tested); irritable affect that softened during the session; passive suicidal ideation, but no plan or intent; coherent thought processes; speech in normal rate and rhythm; no psychosis; good insight; and intact judgment. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise as to whether the Veteran’s PTSD manifested functional impairment to the extent that a 100 percent rating may be assigned. During the rating period, the Veteran’s PTSD has manifested symptoms such as hypervigilance, anger, disturbed mood, and impaired impulse control. Such symptoms are contemplated by a 70 percent rating. 38 C.F.R. § 4.130. The condition has not manifested total occupational and social impairment to the extent that a 100 percent rating is warranted. 38 C.F.R. § 4.126. Specifically, the Veteran has consistently exhibited appropriate orientation; judgment, thought content, and communication within normal limits; the ability to perform activities of daily living; normal memory; and no perceptual disturbances, which does not suggest a symptomatic severity to the extent that a 100 percent rating is warranted. Id. The Board has considered the opinion of Dr. J.G., who found that the Veteran exhibited frequent episodes of grossly inappropriate anger towards other people. However, the Board finds that this symptom has not been of such a frequency, duration, and severity to warrant a 100 percent rating. 38 C.F.R. § 4.126 (a). Specifically, VA treatment records do not document grossly inappropriate behavior as a symptom, despite the Veteran seeking frequent mental health treatment during the rating period. If grossly inappropriate behavior had resulted in significant impairment, it is likely that VA clinicians would have documented it. However, the clinicians instead repeatedly observed that the Veteran had a cooperative attitude. The April 2015 and March 2019 examiners found that the Veteran displayed “good” and “cooperative” behavior, respectively, the March 2016 examiner noted that the Veteran’s behavior was “reserved and cautious”, and the November 2019 clinician noted that the Veteran was cooperative and guarded, but irritated. Although the Veteran experienced episodes of unprovoked anger due to poor impulse control, the Board notes that impaired impulse control with periods of violence is a symptom reflecting functional impairment encompassed by a 70 percent rating. See 38 C.F.R. §§ 4.2, 4.130. The opinion of Dr. R.P. has also been considered. He found that the Veteran’s “paranoia is delusional” and that he exhibited impulse control that is very low and renders him unable to tolerate negative responses. However, the Board finds that the weight of the most probative evidence is not consistent with a finding of persistent delusions, hallucinations, or other psychotic symptoms. 38 C.F.R. § 4.126 (a). Specifically, the Veteran denied hallucinations and other psychotic symptoms in March 2014, April 2015, March 2019, and August 2019, and there is no other indication of such symptoms in the record. As such, the paranoid delusions discussed by Dr. R.P. are not shown to be “persistent” under the meaning of relevant regulations. 38 C.F.R. § 4.130. Further, and as noted above, impaired impulse control with unprovoked irritability and periods of violence is a symptom indicative of functional impairment warranting a 70 percent rating. See id. The Board has reviewed the findings of Dr. D.G., who documented symptoms including mild memory loss, impairment of short and long-term memory, and gross impairment in thought process or communication. However, the weight of the most probative evidence is not consistent with his findings on the severity of the Veteran’s condition. Specifically, no other clinician documented problems with the Veteran’s memory, and VA mental status evaluations in April 2015, March 2016, August 2019, and November 2019, found thought processes within normal limits. This does not suggest that the Veteran exhibited gross impairment of thought processes or communication of such a frequency, severity, or duration that a 100 percent rating may be assigned. 38 C.F.R. § 4.126 (a). The Board has considered the Veteran’s lay statements. In his June 2017 affidavit, he reported having suicidal ideation nearly every day triggered by memories of his military sexual trauma. He also reported various symptoms, including irritability, anxiety, impaired impulse control, nightmares, and hypervigilance. However, the Board is cognizant that the Veteran repeatedly denied having any suicidal ideation when obtaining VA medical treatment during the rating period, and did not report suicidal ideation to VA healthcare providers until November 2019. Suicidal ideation is listed in the criteria for a 70 percent rating. The evidence does not more nearly approximate a showing of persistent danger of hurting self or others which is a criteria of the 100 percent rating. Thus, the Board finds a higher rating is not warranted on that basis. In sum, the most probative evidence does not reach the level of equipoise as to whether the Veteran’s PTSD manifested functional impairment to the extent that a 100 percent rating may be assigned. 38 U.S.C. § 5107 (a). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.