Citation Nr: 20044585 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 16-15 060 DATE: July 2, 2020 ORDER Entitlement to a disability evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD) with memory loss is denied. FINDING OF FACT At no point during the period on appeal has the Veteran’s PTSD been characterized by total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 70 percent for PTSD with memory loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1967 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Previously, this matter was remanded in September 2018 for the RO to undertake additional development. More specifically, the Board instructed the RO to obtain outstanding VA treatment records and to obtain a new VA examination to evaluate the severity of the Veteran’s PTSD symptoms. In April 2020, the RO issued a Supplemental Statement of the Case (SSOC). The matter now returns to the Board. Having carefully reviewed the record, the Board finds that the RO has substantially complied with these remand directives. For instance, the RO took appropriate steps to obtain updated VA treatment records, and the Veteran underwent a new VA examination in December 2019. As such, additional remand for compliance with the Board’s remand directives is not warranted. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the Board observes that in the SSOC that was issued on April 14, 2020, the RO indicated that it considered VA treatment records from Upstate, New York, and Tampa, Florida, from up to March 2020. In May 2020, VA treatment records from up to April 21, 2020 (i.e., after the SSOC was issued), were associated with the claims file. However, neither a waiver of RO consideration nor a remand for initial consideration of the evidence by the RO is necessary, as the VA treatment records from April 2020 are not relevant to the claim on appeal here. 38 C.F.R. § 20.1304(c). Last, the Board notes that the Veteran previously filed a claim for total disability based on individual unemployability (TDIU). In a December 2016 rating decision that was issued during the pendency of this appeal, the Veteran was awarded TDIU, effective September 27, 2012 (i.e., the date the Veteran filed his claim for an increased disability rating for PTSD). Thus, because the Veteran’s claim for TDIU has already been granted for the entire period on appeal, the Board will not consider the issue of TDIU herein. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Entitlement to a disability evaluation in excess of 70 percent for PTSD with memory loss The Veteran asserts that he is entitled to an increased disability rating for his service-connected PTSD. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where, as here, entitlement to service connection 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). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s PTSD is rated under diagnostic code 9411, which is part of the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 70 percent evaluation is warranted where the disorder is manifested by 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 that is 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 an inability to establish and maintain effective relationships. A 100 percent disability evaluation is warranted when there is a 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. A veteran “may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Symptoms listed in the General Rating Formula serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. They are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). Having carefully considered the evidence of record, the Board finds that a 100 percent disability rating is not warranted at any point during the period on appeal. The Veteran’s VA treatment records reflect that since filing his claim in September 2012, he has undergone psychiatric treatment for his service-connected PTSD, as well as VA examinations in June 2013 and December 2019 to evaluate the severity of his symptoms. The record contains various VA treatment records, as well as notes from group and individual counseling sessions. These records indicate that the Veteran has consistently struggled with symptoms such as a depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships, and mild memory loss. However, the evidence of record suggests that the Veteran’s ability to interact with others or engage socially has not been totally impaired. More specifically, although the evidence suggests that the Veteran exhibits difficulty with symptoms such as anxiety and mild memory loss, there are no clinical records indicating that the Veteran has exhibited symptoms indicative of a 100 percent rating for PTSD. To that end, there are no clinical records indicating that he is intermittently unable to perform activities of daily living, presents a persistent danger of hurting himself or others, exhibits memory loss for names of his close relatives, occupation, or own name, suffers from persistent delusions or hallucinations, has grossly impaired thought processes, displays grossly inappropriate behavior, or is disoriented to time or place. For instance, at the June 2013 VA examination, the VA examiner noted symptoms of a depressed mood, anxiety, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, or recent events, as well as impaired judgment, difficulty in establishing and maintaining effective work relationships, irritability or outbursts of anger, difficulty concentrating, and an exaggerated startle response. The VA examiner, however, did not note any symptoms such as persistent delusions or hallucinations, memory loss for his own name or relatives’ names, disorientation to time or place, or grossly impaired thought processes. Likewise, at the December 2019 VA examination, the VA examiner noted symptoms including a depressed mood, anxiety, mild memory loss, disturbances of mood or motivation, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. On the other hand, the examiner also noted that the Veteran was oriented to all spheres, had normal thoughts and speech, and reported no problems with hearing voices or seeing things. Additionally, the examiner indicated that he was cooperative, pleasant, and made good eye contact, displayed fair judgment, insight, and impulse control, without suicidal or homicidal ideation or evidence of psychosis. The examination report also reflects that he and his wife reportedly held social functions at his home. The results from the June 2013 and December 2019 VA examinations are consistent with the other evidence of record throughout the appeal period. For instance, throughout the period on appeal, his VA treatment records are silent for symptoms such as hallucinations, delusions, disorientation to time or place, or the inability to perform activities of daily living. In fact, they generally indicate organized and goal-directed thought processes, orientation to all spheres, and fair or good insight and judgment, while delusions or hallucinations, suicidal ideation, homicidal ideation, grossly inappropriate behavior, and symptoms of psychosis are notably absent. See, e.g.., February 2020 VA Mental Health Outpatient Note; September 2019 VA Neuropsychology Consult; August 2019 VA Mental Health Outpatient Note; February 2019 VA Mental Health Outpatient Note; December 2018 VA Mental Health Outpatient Note; February 2018 VA Mental Health Outpatient Note; January 2018 VA Mental Health Outpatient Note; December 2017 VA PTSD Follow-Up Clinic General Note; November 2017 VA Psychiatry Long Term Care Consult; January 2015 VA Psychiatry Outpatient Note; January 2014 VA Psychiatry Consult Note; October 2013 VA Counseling Progress Note; May 2012 VA Social Work Consult. Additionally, at no point during the period on appeal does the record indicate that the Veteran has been intermittently unable to perform activities of daily living, such as maintaining minimum personal hygiene. For example, a May 2012 VA Care Coordination Home Telehealth Treatment Plan record reflects that he did not require help or care with basic activities of daily living, such as toileting, dressing, or eating, or instrumental activities of daily living, such as preparing meals, transportation, using the telephone, or managing finances. June 2017 VA treatment records confirm that he is independent in performing his activities of dialing living, and that he can cook, clean, do housework, and manage his finances and medications by himself. Similarly, a November 2017 VA treatment record indicates he does not require assistance with activities of daily living. Moreover, his records generally indicate that he is well-groomed. The Board acknowledges that the Veteran reportedly suffers from difficulties with his short-term memory. Nevertheless, the record simply does not indicate that he displays the sort of severe memory loss symptoms associated with a 100 percent disability rating. For instance, he underwent a VA geropsychology cognitive assessment in June 2017 due to “memory issues” complicated by his PTSD symptoms. He reported difficulty with recalling things, increased difficulty with technology, trouble following instructions involving more than two steps, and changes in his expressive language, as well as difficulty concentrating. After administering cognitive function tests, however, the treating clinician found that his cognitive screening assessment score was average, while his global cognitive functioning score fell into the “intact” range. The clinician also noted that he was able to read simple words and sentences without error, and that no difficulty with finding words. His performance on a confrontation naming test was average. Although delayed recall, retention, and recognition memory were considered mildly impaired, the clinician concluded that he exhibited a “within normal limits profile on cognitive testing with age and educational adjustments.” She indicated that his results signaled a modest decline in memory and executive functioning, but that it did not appear that his cognitive symptoms were interfering with his independence with everyday functional tasks. Similarly, at his December 2019 VA examination, the VA examiner evaluated the Veteran’s memory using a slums memory screen and stated that the results were indicative of mild cognitive impairment. Although the Veteran reported some short-term memory issues and issues with finding words, he did not endorse problems with remembering information such as his own name, occupation, or relatives’ names. Ultimately, these results suggest a more modest level of memory loss, as opposed to the severe memory loss associated for which a 100 percent disability rating is warranted. As such, the Board finds that the preponderance of the evidence shows a disability profile that most closely matches the criteria for a rating of 70 percent throughout the period on appeal. A 100 percent disability rating is thus not warranted, and the claim for an increased rating must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.