Citation Nr: 20022410 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 18-03 387 DATE: March 31, 2020 ORDER Entitlement to an increased rating in excess of 50 percent for post-traumatic stress disorder (PTSD), to include major depression, insomnia, and alcohol and amphetamine use disorders, for the period prior to November 14, 2018, and in excess of 70 percent for the period from November 14, 2018 through the present is denied. FINDINGS OF FACT 1. For the period on appeal prior to November 14, 2018, the Veteran’s service-connected psychiatric condition manifested in, at worst, occupational and social impairment with reduced reliability and productivity. 2. From November 14, 2018 through the present, the most probative evidence of record demonstrates that the Veteran’s service-connected psychiatric condition has manifested in, at worst, occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 50 percent for the period prior to November 14, 2018, and in excess of 70 percent for the period from November 14, 2018 through the present for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.2, 4.3, 4.6, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 2005 to August 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Entitlement to an increased rating in excess of 50 percent for PTSD for the period prior to November 14, 2018, and in excess of 70 percent for the period from November 14, 2018 through the present is denied. The Veteran seeks higher respective ratings for his service-connected psychiatric disability. Psychiatric disorders such as PTSD are rated pursuant to the criteria under 38 C.F.R. § 4.130, Diagnostic Code 9411. See General Rating Formula for Rating Mental Disorders (General Rating Formula). Relevant to the issue on appeal, under the General Rating Formula, a 50 percent rating is warranted when there is 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 where there is objective evidence demonstrating 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 the inability to establish and maintain effective relationships. The next higher and maximum 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as 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 and place; memory loss for names of close relatives, own occupation, or own name. Symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Id. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. Id. Following a thorough review of the evidence of record, the Board finds that the evidence is not found to support a higher evaluation than the 50 percent currently assigned for the period on appeal prior to November 14, 2018. Regarding the period prior to November 14, 2018, the Board observes that notes from VA treatment records during this time reflect that the Veteran largely continued to report symptoms that justify, at most, the 50 percent rating currently assigned. He consistently reported symptoms such as anxiety, sleep disturbances, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. See VA Treatment Records Received April 2016. At an April 2018 VA appointment, the Veteran was noted to be “alert and oriented x4 (person, place, time, situation)” and his “attitude was engaged/friendly/cooperative”. His rate of speech and speech content were both “normal” and his mood was euthymic. His affect was “full ranging” and his “thought process was focused and logical” with “cognition and memory [that] seems intact for age”. His “insight and judgment seem[ed] intact”. He denied any suicidal or homicidal ideation. At a July 2018 VA appointment, the Veteran was oriented to person, place, and time. His judgement and insight was reportedly good, his recent and remote memory was intact, and he had a normal mood and affect. At a later July 2018 VA treatment appointment, the Veteran asserted that nothing had changed since he had last seen the provider in 2016. He reported that he had been at the same job for over three years and had been suspended at his job twice for his behavior. He asserted that, “customers have said that he’s rude, accusing him of being on drugs … and racist”. The Veteran admitted ongoing use of meth, but stated that he “gets along with coworkers ok” and “at this point he is trying to do the best he can and is recording and documenting conversations at work”. At a September 2018 VA treatment appointment, the Veteran was “casually dressed” with “normal gait and posture, good hygiene”. His affect was appropriate, non-labile, pleasant and he was oriented to time, place, person. He was cooperative and denied delusions, obsessions, or compulsions. He was anxious, but reported there was no thought disorder, no hallucinations and he denied ideation, plan, means, intent of suicide or homicide. His insight and judgment were both “good” and there were no abnormal tics, twitches, or muscle movements noted. The examiner stated that, “there is no evidence that the pts psychiatric problem is organic in nature”. Relevant to this claim, the Veteran was afforded a Compensation and Pension examination in March 2017. The Veteran reported ongoing issues with PTSD, problems with intrusive thoughts, insomnia, nightmares, panic attacks, irritability, and avoidance of people outside of work. His identified symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran also denied any suicidal ideations. The Veteran was described as having “occupational and social impairment with reduced reliability and productivity.” It was noted that his condition appeared to be worse than his previous Compensation and Pension examination. Based on this examination, the Veteran’s rating was appropriately increased to 50 percent. However, an increase in excess of the Veteran’s 50 percent rating for the period prior to November 14, 2018 is not supported by the evidence. The Board assigns significant probative value to the medical evidence and clinical findings in the record, which noted the Veteran’s specific reported symptoms. These symptoms include the Veteran’s anxiety, sleep disturbances, and difficulty in establishing and maintaining effective work and social relationships. As explained in detail above, the clinical findings, including the Veteran’s reported symptoms constitute, at most, occupational and social impairment with reduced reliability and productivity, which is most consistent with a disability rating of no greater than 50 percent. Similarly, the Board finds that the evidence is not found to support a higher evaluation for PTSD than the 70 percent rating currently assigned for the period from November 14, 2018 to the present. The Veteran was afforded an additional Compensation and Pension examination in February 2019. His appearance was noted as being disheveled but he exhibited adequate personal hygiene. His thought process was determined to be clear and he was able to track the conversation during the interview and provide a coherent history. The Veteran’s judgment and insight were mildly impaired and his speech pattern was mildly pressured. His eye contact was intermittent and his mood was anxious and his affect was angry. He expressed passive suicidal ideation. He became severely physiologically aroused when discussing claimed stressors. There was no evidence of homicidal ideation or thought disorder. Additional symptomology was noted in comparison with his last VA examination, including near-continuous panic or depression affecting the ability to function independently, appropriately and effectively and difficulty adapting to stressful circumstances, including work or a work like setting. In addition to noting functional impairments, the examiner also noted that “claimant does not appear to pose any threat of danger or injury to self or others”. The examiner deemed the Veteran’s level of occupational and social impairment to be “occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood”. After considering the evidence of record under the laws and regulations set forth above, the Board finds that during this period, the Veteran’s service-connected PTSD manifestations were, at worst, no more severe than productive of functional impairment comparable to occupational and social impairment deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. As explained in detail above, the clinical findings, including the Veteran’s reported symptoms, suggest occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, or mood, which is most consistent with a disability rating of no greater than 70 percent. During this period, the Veteran reported some symptoms consistent with his current 70 percent rating such as difficulty in adapting to stressful circumstances, including work or a work-like setting, passive suicidal ideation and some noted neglect of personal appearance and hygiene. However, the record indicates that the Veteran does not even experience many of the symptoms that are consistent with his current 70 percent rating, such as spatial disorientation, the inability to establish and maintain effective relationships, nor speech intermittently illogical, obscure, or irrelevant. While the Board acknowledges the Veteran’s documented work-related interpersonal conflicts, it also notes that overall, he has been able to interact appropriately with treatment providers, VA examiners, and others. Throughout the medical record, the Veteran is noted as having an intact thought process. The Board has considered whether the Veteran’s symptoms constitute a total occupational and social impairment which would justify the next higher and maximum 100 percent rating. However, the Veteran has not reported having, nor does the record independently demonstrate that the Veteran has persistent delusions or hallucinations. While the Veteran has expressed passive suicidal ideation, as noted by the February 2019 VA examiner who asserted that the Veteran “does not appear to pose any threat of danger or injury to self or others”, there is no indication in the record that the Veteran has any inclination toward hurting himself or others. The record also contains no evidence of grossly inappropriate behavior, nor any intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. In contrast, the Board reiterates that even the February 2019 VA examiner who noted the Veteran’s disheveled appearance also stated that he presented with adequate hygiene. He is consistently determined to be capable of managing his own financial affairs. Further, there is no indication that the Veteran has ever been disoriented to time or place, nor that he has ever experienced memory loss for names of close relatives, his own occupation, or his own name. The Board recognizes that the Veteran has reported that he has work-related issues due to his PTSD symptoms. Such impairment is explicitly contemplated by the schedular criteria. That the Veteran was not working at times during the period at issue does not by itself define his level of impairment and does not by itself demonstrate that a rating in excess of 70 percent is warranted. Specifically, it does not, in and of itself, demonstrate that the Veteran has total occupational and social impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9411. In the above discussion, the Board detailed the factors constituting the Veteran’s overall disability picture. The Board has coordinated the Veteran’s demonstrated level of impairment with the rating criteria. See 38 C.F.R. § 4.21; see also Mauerhan, 16 Vet. App. 436. Overall, the Veteran’s psychiatric symptomatology does not more closely approximate the level of severity contemplated by the criteria for ratings in excess of 70 percent. Further, the Board notes that the Veteran has been afforded entitlement to individual unemployability during the course of this appeal. Such an award should fully compensate the Veteran for any work-related impairment related to his PTSD. The Board is sympathetic to the Veteran’s contention of experiencing traumatic events while in-service, as well as his account of how the residuals of these experiences have affected him in post-military life. The Board is also sympathetic to the Veteran’s financial issues. See e.g. June 2017 Notice of Disagreement. However, appropriate levels of compensation for the Veteran’s PTSD have been afforded during the entirety of the appeal. In so finding, consideration has been given as to the appropriateness of further staged ratings; however, at no time during the relevant appeal period does the evidence support such an award. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Based on the foregoing, a disability rating greater than 50 percent for the period prior to November 14, 2018, and in excess of 70 percent for the period from November 14, 2018 through the present is not warranted. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Smith, 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.