Citation Nr: 20037511 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 17-00 876 DATE: June 2, 2020 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s PTSD symptoms resulted in occupational and social impairment with deficiencies in most areas; total occupational and social impairment was not shown. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 2000 through April 2007. For his meritorious service, the Veteran was awarded (among other decorations) the Iraq Campaign Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was before the Board in January 2019. The Board denied three other claims and remanded the Veteran’s claim for an increased rating for his TDIU for further development. There has been substantial compliance with the Board’s remand instructions, so the Board may proceed to a decision on this matter. The Veteran has previously appointed an attorney to serve as his representative. That attorney withdrew his representation in April 2017, and the Veteran has not thereafter appointed a new representative. As a final preliminary note, the Veteran has been in receipt of a total disability rating based on individual unemployability (TDIU) over the course of the entire appeal period. The Veteran is service-connected for two disabilities (PTSD and tinnitus). The TDIU in this case was granted specific to the Veteran’s PTSD claim. As such, no further action or discussion is warranted with respect to TDIU. Increased Rating Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. §§ 4.1, 4.2, 4.3. Evaluations are based on functional impairments which impact a veteran’s ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating, otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In cases such as this where the Veteran’s rating has been staged, the Board is tasked with reviewing the propriety of both the disability ratings assigned as well as the dates of the stage. Evaluations for various psychiatric disabilities are assigned pursuant to 38 C.F.R. § 4.130. Under the General Formula, a 70-percent evaluation applies when a veteran’s occupational and social impairment reflects 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. A 100-percent rating is assigned when 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; and memory loss for names of close relatives, own occupation, or own name. 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 a rating 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). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely based on social impairment. 38 C.F.R. § 4.126(b). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the veteran’s symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. 1. Entitlement to an evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD) is denied. Currently, for the entire period on appeal, the Veteran’s PTSD is rated at 70 percent. For the reasons that follow, the Board determines that a rating in excess of 70 percent is not warranted. The Veteran’s VA treatment records reflect his mental health symptoms and treatment. In 2011, his VA treatment records reflect complaints of anxiety, depression, isolation, poor sleep, fatigue, disturbed concentration, lack of motivation, irritability, angry outbursts, hypervigilance, and suspiciousness. The Veteran was seeking help for his mental health disability. He also reported social impairments. He denied nightmares or flashbacks; he also denied suicidal ideation or homicidal ideation. In December 2015, he again sought mental health treatment. The VA treatment records reflect the same symptoms noted above, but the Veteran also stated he pulls hair out of his beard and eyebrows and that he takes four to five showers a day to calm his mind. He stated if he does not take showers, he gets physically ill. He also reported passing thoughts of suicide and drinks up to ten beers every three to four days. In January 2016, he reported having thoughts of suicide, but said he did not have plans or thoughts on completing it, but he reported feeling stuck and that years are passing by and he is missing it. Additionally, in January 2016, the Veteran reported sleep issues, anxiety, intrusive thoughts and nightmares, avoidance of crowds, hyper-startle response, hypervigilance, isolation, racing thoughts, persistent negative emotional state, diminished interest in participation in activities, detachment from others, and concentration issues. The Veteran’s VA treatment records from June 2017 report regular suicidal thoughts but admits he has three beautiful daughters to live for and their family trips have been helpful. The Veteran’s recent VA treatment records from June 2019 state the Veteran does not appear to be anxious or depressed and stated he was pleasant. The VA doctor also noted his PTSD is stable but expressed concerned about the patient’s alcohol usage. The VA examiner noted the Veteran declined further intervention and treatment regarding his PTSD. In March 2012, the Veteran underwent a VA examination. The VA examiner diagnosed the Veteran with PTSD and dissociative amnesia. The VA examiner stated the diagnosis of dissociative amnesia may account for periods of time the Veteran described as a fog that lasted for an extended period. The Veteran explained that during this time, no one can reach him, including his wife and children. The VA examiner determined the Veteran’s occupational and social impairment was characterized as deficiencies in most areas, such as work, school, family relations, judgment, thinking, and or mood. The Veteran reported he was married with children, and is close with his parents. The Veteran stated he has had trouble holding a job due to the dissociative periods and he was enrolled in college. He attempted to go to campus, but he missed too many classes and enrolled in online classes. The Veteran has attempted suicide by cutting his wrists with a screwdriver because he did not have a razor; he was not hospitalized at the time. He had threatened suicide and his gun was taken from him. Regarding his symptoms, the VA examiner noted the Veteran has depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, short and long term memory impairment, flattened affect, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation, and impaired impulse control. The Veteran reported he has periods of time he does not leave his basement and he often does not eat unless he is reminded. The Veteran underwent a VA examination in September 2015. The VA examiner confirmed his diagnosis of PTSD. The VA examiner characterized his occupational and social impairment as having deficiencies in most areas, such as work, school, family relations, judgment, thinking, and or mood. The Veteran reported his relationship with his family is very good. He is the caregiver for his three children. The Veteran stated his marriage was fair. He attends monthly meetings with others at the local Legion and firehouse. The Veteran reported he volunteers at the local Legion and firehouse. He described those relationships positively. The VA examiner stated the Veteran reported minimal social impairment related to behavioral health symptoms. The Veteran stated he attended a semester of college, but he felt irritated with his instructors and other students, but he did not have any formal disciplinary action or behavioral problems in school. The VA examiner felt the Veteran exhibited moderate occupational and educational impairment related to his behavioral health symptoms. The Veteran reported he sees a private doctor for his medical care, and he is prescribed medication to take as needed, he states he takes the medication approximately three times per week. The Veteran reported increased nightmares and worsening interpersonal withdrawal. He reported more negative thoughts and his mood is fair. The Veteran reported anhedonia, decreased involvement in activities, interpersonal detachment, irritability, sleep issues, and concertation problems. The Veteran also reported he takes multiple showers daily to help calm himself down. The Veteran reported aggressive behavior with property within his residence (threw barstools, flipped a pool table, damaged drywall.) The Veteran reported his alcohol use has decreased and he does not have alcohol withdrawal symptoms; he reports to two days of eight to ten cans of beer per sitting. The VA examiner reported the Veteran was cooperative and did not appear to be in physical or psychological distress. He appeared neat and in appropriate attire with good hygiene and grooming. The VA examiner stated the Veteran’s mood was euthymic and his affect was broad, responsive, and mood-congruent. His thought processes were logical and goal-directed. The Veteran denied delusions and auditory or visual hallucinations. The VA examiner concluded that while the Veteran’s nightmares reportedly increased, the examiner stated the Veteran’s occupational and educational impairment remained stable and there is no evidence it has worsened. The Veteran underwent a VA examination in February 2020. The VA examiner noted in April 2011 the Veteran was diagnosed as having depression and alcohol abuse and PTSD. The VA examiner stated the Veteran’s current level of social and occupational impairment from his PTSD is insufficient to support a level of total impairment or individual unemployability. The VA examiner categorized the Veteran’s social and occupational impairment as due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The VA examiner confirmed the Veteran’s diagnosis of PTSD and noted a diagnosis of moderate alcohol use disorder. The VA examiner also noted the Veteran did not describe any dissociative symptoms and as a result, the examiner did not provide a diagnosis of dissociative amnesia and stated this is a departure from the diagnosis given in the 2012 VA examination. The VA examiner noted the Veteran has been married for eighteen years and has three children. The examiner noted the Veteran described his marriage negatively and reported he is not involved with much of the parenting or household responsibilities aside from helping with homework. The Veteran reported he does not assist with household chores and stated he often does not attend his children’s activities. The Veteran explained he feels he needs two to three years where he has no responsibilities to sort through his thoughts to get to a point where he considers himself to be well. He reported he has friends and described being active and social with his friends, he does not experience feelings of detachment from his friends. The Veteran reported he feels “like a bum” because he does not work but explained the only job he would consider would be growing marijuana on a large-scale corporation that he would own. The Veteran reported he had a series of jobs that did not work out after leaving service, he did enjoy a job as a heavy equipment operator where he worked alone. The Veteran reported he filed for Social Security disability and has not worked since 2010. He is also in receipt of TDIU from 2012 from the VA. The Veteran reported he does not receive mental health treatment. He reported he took medications in the past but did not feel it was effective enough to justify the side effects. He states he self-medicates with marijuana and CBD oil. The Veteran also reports he drinks heavily about three days a week. He admits he does not drink for pleasure; he drinks to black out. He indicates he varies from feelings of rage to crying. The Veteran also stated he drinks socially with friends. The VA examiner stated the Veteran did not report symptoms so severe they would render him unable to perform mental or physical tasks for gainful employment. The examiner noted the Veteran is not taking medication and has not received consistent mental health treatment. The examiner noted the Veteran reported he felt he would be capable of managing a company he would like to start if he could secure financing. The Veteran reported he is capable of socializing with friends for lunch or dinner and the examiner states the Veteran did not describe anxiety or behavioral dysregulation that would prevent him from interacting with others in a work-like setting. The Veteran reported feelings of detachment from family, but did not describe this with friends and did not indicate difficulty with social interactions. The symptoms reported by the Veteran include anxiety, chronic sleep impairment, and disturbances of mood. The VA examiner stated the Veteran presented as alert and oriented, his speech was clear and coherent. The VA examiner stated there was no evidence of impaired reality testing and the Veteran did not report symptoms of psychosis, disassociation, or delusional thinking. The VA examiner reported the Veteran’s mood was smug and his affect varied appropriately with conversation. The VA examiner stated the Veteran’s memory was intact and he understood basic metaphors, but stated the Veteran’s insight is lacking. The examiner stated the Veteran reported he is significantly impaired by his PTSD but did not describe significant functional impairments outside of referring to past reports. The February 2020 VA examiner noted the Veteran’s occupational and social impairment to be due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The VA examiner noted the Veteran does not appear to pose any threat of danger to himself or others. The examiner noted the Veteran’s responses in February 2020 differ from the statements from his VA examination in March 2012 and September 2015. The examiner stated that most notably, in the 2020 examination, the Veteran provided no reports of dissociation, but there is clear evidence of alcohol abuse. The VA examiner specifically stated the Veteran describes functioning at a level that would be above what someone rated with a 70 percent evaluation would be. The examples from the examiner include the Veteran exploring plans to start a company and socializing regularly with friends. Regarding his ability to work, the Veteran provided an example of a business he would like to start. The examiner stated the Veteran focused on not wanting to work and not being able to identify any work he would want to do besides marijuana farming. The examiner stated the Veteran’s diagnosis of PTSD is confirmed based on his history but the information obtained during the February 2020 VA examination was not consistent with a 70 percent level of impairment or unemployability, the examiner stated the Veteran’s reports of symptoms were not consistent with meeting the criteria for a PTSD diagnosis. The examiner reported the Veteran stated many of his symptoms had nothing to do with his service. The examiner did state the Veteran smokes marijuana to self-medicate and the examiner said it is unclear if this impacts the Veteran’s experience and report of symptoms. Given this history, the Board finds that a disability rating in excess of 70 percent for the Veteran’s PTSD is not warranted. In this regard, the Board does not explicitly find, positive or negative, that the Veteran’s symptoms are more consistent with the frequency, severity, and duration of those described by the 70 percent rating or the 100 percent rating. Such a finding is unnecessary here, for not matter what the characterization of those symptoms, they have not resulted in the total occupational and social impairment as required for a 100 percent rating. Focusing specifically on social impairment, the Veteran has been married over the entire appeal period. Though he has certainly described that relationship as strained, he nevertheless has remained married. Further, the Veteran has described positive relationships with his children, describing them as the reason that he has not acted upon his suicidal ideation. Finally, the Veteran has consistently – across VA treatment records and examinations – described maintaining relationships with friends, and volunteering with veterans organizations and the firehouse. Given the relationships the Veteran has maintained with his family and friends, the Board finds that the evidence of record does not show total social impairment as required for a 100 percent rating, regardless of the severity of the Veteran’s symptoms. The preponderance of the evidence is against the Veteran’s claim. There is no doubt to be resolved. A 100 percent rating for PTSD is therefore not warranted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, 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.