Citation Nr: 20028853 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 17-40 417 DATE: April 24, 2020 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with associated depression is denied. FINDING OF FACT Throughout the entire appeal period, the Veteran’s service-connected PTSD symptoms did not more nearly approximate the criteria for total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD with associated depression have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Marine Corps from September 2002 to September 2006. This case comes before the Board of Veterans Appeals from a June 2016 rating decision by the Department of Veterans Affairs (VA) regional office (RO). 1. Entitlement to a rating in excess of 70 percent for PTSD with associated depression The issue in this appeal is whether the Veteran’s PTSD symptoms cause the level of impairment required for a total disability rating of 100 percent. The Board concludes that the Veteran’s symptoms do not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms result in a level of impairment that most closely approximates the level of impairment associated with a 70 percent rating. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings is permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under these criteria, 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); inability to establish and maintain effective relationships. 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. The Veteran was in consistent psychotherapy beginning November 2014 until August 2015. During that time, his therapist consistently reported the Veteran was groomed and casually dressed, oriented to person, place and time, showed good cooperation, liner thought process, with fair insight and good judgment. He was never reported to have suicidal or homicidal ideation during that time. The therapist noted on multiple occasions that the Veteran was making progress. As an example, in March 2015, the therapist reported that the Veteran appeared to be responding well to his mental health treatment. He had reported a positive shift in his self-esteem, was more social, and was engaging in enjoyable activities. In April 2015, the Veteran reported feeling “particularly euthymic this past week, with no ups and downs,” and reported that he continued to thrive at work. In July 2015, the Veteran reported no further anger outbursts, and stated that his family was responding positively to his improved stress management and coping skills. A July 2015 Compensation and Pension (C&P) Examination found the Veteran’s PTSD symptomatology to cause occupational and social impairment with reduced reliability and productivity. The symptoms of the Veteran’s PTSD were noted to include depressed mood, anxiety, suspiciousness, near continuous panic or depression affecting the ability to function independently and appropriately, chronic sleep impairment, mild memory loss forgetting names or recent events, impaired judgment, disturbance of motivation or mood, difficulty in establishing or maintaining effective work or social relationships, difficulty in adapting to stressful situations. During this examination, the Veteran reported losing all of his friends he had prior to the military, including a girlfriend. He reported feeling close to only three to four people, all of which are immediate family. The Veteran reported being fired from a company for making inappropriate comments and having difficulty getting along with coworkers and customers. During a May 2016 C&P Examination, the Veteran was found to have the same symptoms as the April 2015 examination, with the added note of neglect of personal hygiene and appearance. The examiner noted that the Veteran’s symptoms were productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. During a March 2017 C&P examination, the Veteran reported having a new girlfriend and being scared of this new relationship, saying he could not make relationships work with new people. He reported still having only around three friends he trusted. He stated he tried to go to the movies but felt very jumpy and stressed out in the crowds. His symptoms were reported to be the same as the May 2016 examination: depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function, chronic sleep impairment, mild memory loss, disturbance of motivation or mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, neglect of person appearance and hygiene. During a June 2017 VA treatment visit, the Veteran reported that he was doing well, but had episodes of aggressive moods usually to do with his then-fiancée. He reported that he had to step back from work to focus on himself, and that he was living independently and had lost a significant amount of weight. The examiner noted he was well-groomed, pleasant and insightful, articulately expressed himself, and showed good eye-contact. The examiner did note mild anxiety and hyper-arousal in response to situations which result in anger. The Veteran denied any suicidal or homicidal thoughts. During a September 2017 VA treatment visit, the Veteran was noted to be in a euthymic mood. He reported a history of mood swings and irritability, and extended periods of time with little sleep and elevated irritability. He reported feeling anxiety was a problem for him, and that sleep was poor due to increased nightmares. He denied recent or current suicidal ideation. During an October 2017 VA treatment visit, the Veteran reported there had been several days the prior week where he woke up in a “terribly depressed mood” and barely wanted to get out of bed. He reported that he had not felt that badly in three years and was unsure as to the cause. During a March 2018 VA treatment visit, the Veteran reported working in the church and other activities. He was continuing to have bad nightmares for the first time in a while. He was, however, excited about an upcoming opportunity to come to Washington, DC to speak to a Senate committee about Veteran gambling addictions and VA work on mental health treatment for Veterans. During an August 2018 VA treatment visit, the Veteran appeared in good spirits. He denied symptoms of depression, and the examiner noted his mood and energy were good, and there was no acuity in his symptoms of PTSD, though he continued to have difficulty falling asleep. The Veteran reported he had recently gotten married. During a November 2018 VA treatment visit, the Veteran was noted to be in a euthymic mood and was pleasant and sociable. He reported good mood and energy and interests and denied symptoms of depression. In his June 2016 NOD, the Veteran argued that his scores on depression and anxiety testing represented a higher level of symptomatology than that acknowledged by the 70 percent rating. He also argued that being unable to communicate in a work situation can be considered as gross impairment in thought process or communication. Additionally, he argued that an inability to sleep is grossly inappropriate behavior. Lastly, he argued that neglect of personal hygiene, as noted by the examiner, warrants a 100 percent rating. In an August 2017 statement accompanying his Form 9, the Veteran argued for a total rating of 100 percent for his PTSD. He stated that he was fired from his job due to an inability to perform his duties due to his PTSD-related symptoms. He stated he is not able to spend time with people in social situations for more than a few minutes, or he starts having anxiety attacks, which he argues qualifies as total occupational and social impairment. He also noted that he has had days when he does not even get out of bed, which he labels an intermittent inability to perform activities of daily living. He argues that his constant panic attacks every day and anger issues constitute extreme or excessive behavior. He notes he has forgotten the names of close relatives, including aunts, cousins, and his sister-in-law. Upon review of the record, the Board finds the level of impairment caused by the Veteran’s symptoms most closely approximates the level associated with a 70 percent rating. His symptoms have consistently been reported to include depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function, chronic sleep impairment, mild memory loss, disturbance of motivation or mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, neglect of person appearance and hygiene. These symptoms are all contemplated by a 70 percent rating. Importantly, the Board finds that the evidence does not demonstrate total occupational and social impairment. Here, the Veteran has not displayed gross impairment in thought or communication, persistent delusions or hallucinations, persistent danger of hurting himself or others, disorientation to time or place, or memory loss of the names of family members, his own name, or his occupation. Rather, the reports consistently show the Veteran to be in a positive mood, well-groomed, with good insight. The Board notes the Veterans assertions in his statements from June 2016 and July 2017. However, the referenced scores are not used to evaluate the severity of PTSD for compensation purposes. Similarly, an inability to communicate efficiently in a work situation does not constitute gross impairment in thought process or communication, but rather is contemplated in a 70 percent rating as difficulty in adapting to stressful circumstances (including work or a worklike setting). Sleeping difficulties are similarly not considered to be grossly inappropriate behavior and are separately contemplated in the criteria for a lower 30 percent rating. Likewise, the Veteran’s memory loss was reported to be mild, and as such is already contemplated by 50 percent rating. Lastly, his chronic panic attacks are contemplated by a 70 percent rating. The Board further notes the Veteran’s denial of symptoms of depression as recently as August 2018. Additionally, the Veteran has recently entered into a marriage, prior to which he lived independently. He has also successfully held down a job at his church such that his compensation for individual unemployability was severed effective January 2019. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s PTSD symptoms have resulted in the level of impairment required for a rating in excess of 70 percent. The criteria for a rating of 100 percent are not met, and the appeal must be denied. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Stuedemann, 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.