Citation Nr: 20052948 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 19-11 282 DATE: August 10, 2020 ORDER The claim of entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT Throughout the period on appeal, the preponderance of the evidence reflects that the Veteran’s service-connected PTSD has not caused a total occupational and social impairment sufficient to warrant a total disability rating. CONCLUSION OF LAW The criteria for an evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from August 1963 to August 1966. The instant matter is on appeal from a May 2018 rating decision. In August 2019, the Board denied the Veteran’s claim of entitlement to an earlier effective date for the grant of a 70 percent rating for PTSD and remanded the claim of entitlement to a rating in excess of 70 percent for issuance of a Supplemental Statement of the Case (SSOC). The increased rating claim has returned to the Board for adjudication following the issuance of an October 2019 SSOC. The additional VA treatment records received following the issuance of this SSOC pertain to treatment for a skin condition, blood work, administration of an influenza vaccine, and dental services. These records do not contain new psychiatric treatment records; thus, these newly added VA treatment records are not relevant to the issue on appeal, and a second remand for issuance of an SSOC is not required. 1. The claim of entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) The Veteran contends that he is entitled to a 100 percent rating for his service-connected PTSD. Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, which is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased 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). The Veteran’s PTSD is rated under Diagnostic Code 9411, 38 C.F.R. § 4.130. Mental disorders are rated under the General Rating Formula for Mental Disorders pursuant to 38 C.F.R. § 4.130. A 70 rating is warranted when 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); and an inability to establish and maintain effective relationships. A 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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, 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, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. After a thorough review of the medical and lay evidence of record, the Board finds that the Veteran is not entitled to a total disability rating for his PTSD. Throughout this period on appeal, VA treatment records reflect a continuation of semi-regular psychiatric treatment for PTSD, primarily through medication management appointments with a psychiatrist. In October 2017, the Veteran reported not having close relationships with friends or family, and he stated that he did not like people. He took no joy in engaging in extracurricular activities outside of his home. He acknowledged feelings of depression, but denied feelings of hopelessness and worthlessness. He also denied suicidal ideation, and minimized the amount of alcohol he consumed daily, becoming increasingly irate on further questioning on his alcohol use. The Veteran’s thought processes were organized, logical, goal-directed, and future-oriented. He did not experience hallucinations or delusions. Insight and judgment were good, and his cognition was grossly intact. Grooming and hygiene were normal, and speech was of normal rate and volume without slurring. In November 2017, medication management notes indicate improvement in the Veteran’s depressive symptoms as demonstrated by involvement in activities that he previously found pleasurable. There was an overall reduction in hopelessness, and his social isolation had somewhat abated. The Veteran slept consistently without early morning awakening. He also reduced his drinking relative to the height of his alcohol use. On examination, the Veteran was pleasant and cooperative, and he demonstrated good eye contact. His grooming and hygiene were normal. Speech was of normal rate and volume without slurring. He endorsed an “ok” mood with normal affect and appropriate range. The Veteran’s thought processes were organized, logical, goal-directed, and future-oriented. He denied thoughts of self-harm or harm to others, as well as suicidal and homicidal ideation. He did not experience hallucinations or delusions. Insight and judgment were good, and his cognition was grossly intact. In January 2018, the Veteran underwent a VA examination to assess the nature and severity of his PTSD. Due to findings of symptom exaggeration and malingering, the examiner could not confirm his psychiatric diagnosis at that time. The Veteran stated that he was unmarried and had no children. He denied having close friends, and he endorsed daily alcohol usage. He presented to the examination casually dressed, clean shaven, and appropriately groomed with good hygiene. There were no behavioral signs of mania or psychosis. He reported feeling anxious “on a regular basis, probably three or four times a week” for approximately “half the day.” He experienced nightmares a couple of times per week, and recounted experiencing panic attacks where he would “wake up instantly” with his heart racing. The Veteran endorsed a history of depressive symptoms for many years, and he attributed the depression to his health and in-service sexual trauma, among other factors. He enjoyed watching television and reading the newspaper. He slept six to eight hours per night, and he reported “ok” energy. He subjectively reported difficulty with concentration, but “all right” self-esteem. The Veteran denied suicidal and homicidal ideation, as well as attempts to self-harm. There were no signs or symptoms of mania or hypomania on examination, nor were there behavioral signs of psychosis. The Veteran reported auditory hallucinations, but the descriptions of these hallucinations were inconsistent with research literature pertaining to the issues. He denied visual hallucinations, delusions, paranoia, or grandiose beliefs. On examination, the Veteran was fully alert and oriented. There was no evidence of remote memory impairment. The examiner provided two assessments to test for exaggeration of symptoms or malingering. In the first, self-administered questionnaire, the Veteran’s responses were highly atypical of individuals who have a genuine psychiatric or cognitive disorder, leading the examiner to conclude that the Veteran was exaggerating his symptoms. The second test for malingering indicated that he was feigning symptoms as well. The fact that the Veteran was not diagnosed with major depressive disorder was not tantamount to saying that he did not meet the criteria, but it instead reflected that “because the Veteran was uncooperative the undersigned [examiner] was unable to differentiate possible legitimate symptoms from feigned symptoms.” In April 2018, VA treatment records reflect another appointment for medication management. The Veteran was appropriately dressed and groomed for the meeting. His speech was of normal rate, rhythm and volume, and his eye contact was good. The Veteran endorsed a good mood, and he exhibited an appropriate affect. He denied suicidal and homicidal ideation, as well as hallucinations, paranoia, or delusional thoughts. He exhibited good insight and judgment, and he was fully alert and oriented on examination. The Veteran underwent another VA examination to assess the severity of his psychiatric condition in April 2018. The Veteran was diagnosed with PTSD that caused occupational and social impairment due to mild or transient symptoms. He remained single with no children. He reported consuming two to three alcoholic beverages per day. His symptoms included depressed mood, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, feelings of worthlessness, nightmares, flashbacks, avoidance, markedly diminished interest in significant activities, feelings of detachment from others, persistent inability to experience positive emotions, irritability, hypervigilance, exaggerated startle response, and difficulty concentrating. The Veteran was cooperative on examination, and he reported to the examination appropriately and neatly dressed with good grooming. His posture and motor behavior were normal, and he exhibited appropriate eye contact. Speech was fluent with a clear voice. His thought processes were coherent, and goal directed with no evidence of hallucinations, delusions, or paranoia. Affect was in full range and appropriate to speech and thought content. The Veteran was alert and oriented to person, place, and time. His attention and concentration were intact with some evidence of mild recent and remote memory impairment. Insight and judgment were good. In June 2018, VA medication management notes indicate that the Veteran was doing very well overall. He expressed some difficulties with a neighbor, and he reported drinking one to two beers “on occasion.” He slept well and used sleep medication around three times per week. He denied other symptoms at that time. In the appointment, the Veteran joked with the clinician about his seasonal home in another state, and he said that he was frequently invited to social events in the housing complex that he did not want to attend. The Veteran gardened regularly, and he joked about planting too many tomatoes the previous year. The Veteran denied suicidal and homicidal ideations. He was appropriately dressed and groomed on examination. Speech was of normal rate, rhythm, and volume with good eye contact. He was in a “good” mood with appropriate affect. The Veteran denied hallucinations, paranoia, and delusions. Insight and judgment were good. The Veteran was fully alert and oriented through the appointment. In June 2018, approximately one day after the aforementioned medication management appointment, the Veteran submitted a statement describing his present PTSD symptoms. He reported impairments of his thought processes and communication, persistent hallucinations, intermittent inability to perform daily living activities, disorientation to time and place, and memory loss of names of friends and relatives. In December 2018, VA medication management notes indicate that the Veteran remained at his baseline and was doing well. He continued to intermittently utilize sleeping medication to help him sleep, and he slept “reasonably well”. The Veteran reported drinking alcohol daily. He visited his brother and they went out to eat together. The Veteran was appropriately dressed and groomed for the appointment. Speech was of normal rate, rhythm, and volume, and he exhibited good eye contact. The Veteran reported a “good” mood, and his affect was appropriate. He denied suicidal ideation, homicidal ideation, hallucinations, paranoia, and delusional thoughts. Insight and judgment were good. The Veteran was alert and oriented through the appointment. In April 2019, the Veteran submitted a statement regarding the severity of his symptoms. He reported seeing a mental health specialist “as he see[s] fit” at the VA. He reported feeling as though he lived in a “black hole” and endorsed frequent drinking, use of medication, and self-isolation. He endorsed depressive symptoms. Shortly thereafter, in April 2019, VA medication management notes reflect that the Veteran remained at his baseline and was doing well. He “raved” about his time at his winter home, but said that his neighbors continued to try to get him involved in the community. He repeatedly declined to participate. The Veteran expressed the desire to garden and paint his garage as the weather improved, and he continued to drink alcohol daily. He denied suicidal and homicidal ideation. The Veteran was appropriately dressed and groomed for the appointment, and his speech was of normal rate, rhythm, and volume. He also exhibited good eye contact and endorsed a “good” mood with appropriate affect. He denied hallucinations, paranoia, and delusional thoughts. Insight and judgment were good. The Veteran was alert and oriented on examination. In May 2019, the Veteran underwent yet another VA examination to assess the severity of his PTSD. He was diagnosed with PTSD, alcohol use disorder, and moderate major depressive disorder that caused occupational and social impairment with reduced reliability and productivity. The Veteran continued to live alone and denied a relationship with his family. He denied hobbies, but noted that he spent his days reading. He consumed two to four drinks daily, usually in the evenings. Symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. He arrived as scheduled for the evaluation and was appropriate dressed. His affect was flat and congruent with mood. He was fully oriented on examination with normal posture and motor behavior. Eye contact was appropriate. In June 2019, VA medication management notes reflect that the Veteran remained at his baseline and was doing “quite well.” He had been gardening recently, but complained about the rain making it difficult to spend time outside. He had not started painting his garage as he found it too difficult to scrape off the old paint through the constant rain. He expressed concern about an empty house in his neighborhood, believing that people were still living inside, and he contacted law enforcement on a couple of occasions to investigate. The Veteran was concerned about his house, as well as the local children who play in the area. Sleep had been “about the same”, as did his mood and alcohol intake. The Veteran looked forward to spending time with his brother for his brother’s birthday, and he stated that they got lunch together to celebrate their birthdays. The Veteran was appropriately dressed and groomed, and his speech was of normal rate, rhythm, and volume. He exhibited good eye contact and endorsed a “good” mood with appropriate affect. He denied suicidal ideation, homicidal ideation, hallucinations, paranoia, and delusional thoughts. Insight and judgment were good. The Veteran was alert and oriented through the appointment. In September 2019, VA medication management notes reflect that the Veteran remained at his baseline and was doing well. Summer was going well for him, and his garden was nearly finished. He looked forward to traveling to his winter home. The Veteran’s medications were working “very well,” though he expressed some difficulty sleeping the previous night. Difficulty sleeping happened “every so often”, but he slept well after these instances. The Veteran went to a recent fair for a couple of hours, and relayed his experiences to the clinician. He consumed a few alcoholic beverages per day. The Veteran denied suicidal ideation, homicidal ideation, hallucinations, paranoia, and delusional thoughts. He was appropriately dressed and groomed for the appointment. Speech was of normal rate, rhythm, and volume. His eye contact was good, as was his insight and judgment. The Veteran was alert and oriented through the appointment. The Board recognizes that the Veteran suffered from deficiencies attributable or exacerbated by his PTSD. The Board’s determination of the appropriate degree of disability is a finding of fact. In applying the ratings schedule, the Board considers the severity, frequency, and duration of psychiatric symptoms to determine the appropriate disability evaluation. See, e.g., Brewer v. Snyder, No. 15-2800, 2017 U.S. App. Vet. Claims LEXIS 90, at 13 (Vet. App. Jan. 31, 2017); citing Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). While symptoms are listed under each category for evaluation, the particular symptoms are to be demonstrative of that overall level of severity, frequency, and duration. Mauerhan v. Principi, 16 Vet. App. 436, 442 (U.S. 2002). As such, the Board has considered the symptoms specific to the Veteran throughout the period on appeal, and determined the analogous evaluation pursuant to the ratings schedule in 38 C.F.R. § 4.130. When considering the severity, frequency and duration of the impairments as delineated in the 70 percent evaluation, the Board notes that the symptoms listed present a significant impediment to daily life. Symptoms such as obsessional rituals which interfere with routine activities, near-continuous panic or depression, and the inability to establish and maintain effective relationships, present obstacles to routine functioning on a daily basis. Personal hygiene and grooming are not limited to one particular sphere, but affect work, school, and family relations. Spatial disorientation and intermittently illogical speech are markedly severe symptoms associated with basic cognitive function and the ability to interact with the world. Suicidal ideation, in of itself, represents the impulse or desire to remove oneself from the world entirely. As exemplified by the symptoms listed in this category, the 70 percent evaluation is appropriate for deficiencies that harm most areas of life. Either symptoms are continuous, or near continuous, or represent such a severity that routine daily functions are chronically impeded. In contrast, the evaluation for a 100 percent impairment includes symptomatology that presents a total impairment to daily functioning. Not only are the representative symptoms of the most severe possible from a psychiatric disorder, but they interfere with the ability to independently engage in activities of daily life. Persistent delusions or hallucinations, disorientation to time or place, and significant memory loss all prevent the person from routine engagement with the world. The ability to even maintain the most basic hygiene standards has been harmed by the severity or frequency of the associated symptomatology. When symptoms of a psychiatric disorder are so severe as to present a total impairment to occupational and social activity, then a 100 percent evaluation should be afforded. Throughout the period on appeal, the evidence of record reflects that the Veteran experienced a number of symptoms related to his PTSD, major depressive disorder, and alcohol use disorder. Such caused him to largely socially isolate, and he consumed alcohol on a regular basis to cope with his PTSD and major depressive disorder. He remained alert and oriented throughout the period on appeal, and he reliably demonstrated good hygiene, grooming, insight, judgment, and composure with his clinicians. He also consistently denied suicidal and homicidal ideation. Through written statements, however, the Veteran separately endorsed much more significant symptomatology, including impairment of thought processes and communications, persistent hallucinations, intermittent inability to perform daily living activities, disorientation to time and place, and memory loss of names of friends and relatives. Generally, the Veteran is competent to describe these symptoms of a psychiatric disorder observable to a lay person. However, the Board notes that the Veteran provided inconsistent statements as compared to multiple treatment records and VA examinations. In his routine medication management sessions, the Veteran repeatedly denies experiencing symptoms of hallucinations, delusions, and paranoia. He does not address any disorientation, severe memory loss, or inability to perform daily activities. In the January 2018 VA examination, the Veteran endorsed auditory hallucinations that did not comport with research literature that details the nature of auditory hallucinations, and the examiner subsequently determined that the Veteran was both exaggerating his symptoms and feigning symptoms during the examination. The only other occasion wherein the Veteran reported significant symptoms such as hallucinations was in a lay statement made just one day after he denied such to his psychiatrist at the VA Medical Center. Multiple mental health clinicians, including VA examiners and the Veteran’s treating psychiatrist have determined that he did not experience severe symptoms such as impairment of thought processes, persistent hallucinations, intermittent inability to perform daily living activities, disorientation, and severe memory loss. At worst, his memory loss was categorized as mild by multiple clinicians. Additionally, the Veteran engaged in regular hobbies including gardening, home improvement activities, and reading. The Board must determine whether lay evidence is credible, and factors such as possible bias, conflicting statements, and the absence of contemporaneous medical evidence may be weighed against the lay evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); see Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (Board has duty to determine the credibility and probative weight of the evidence); Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (“Credibility is determined by the fact finder.”). Regarding issues of credibility, the Board notes that credibility can be affected by inconsistent statements, internal inconsistency of statements, and inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Such inconsistent statements described above surrounding the overall severity of the Veteran’s psychiatric disorder significantly diminish their overall probative value. Furthermore, the Veteran was found on one occasion to be exaggerating and feigning symptoms associated with his psychiatric disorder such that the examining psychologist could not formally confirm the Veteran’s psychiatric diagnosis. Due to the multiple inconsistencies with the record, as well as the finding of exaggeration and malingering, the Veteran’s statements indicating much more severe PTSD symptomatology are found to lack credibility, and thus are assigned no probative weight overall. While certainly severe, the competent, credible manifestations of the Veteran’s service-connected PTSD in this timeframe do not rise to the level of a total occupational and social impairment for the purposes of 38 C.F.R. § 4.130. His impairments, while touching on many areas of his life, are not of such severity to interfere with routine functions necessary for daily life. The Veteran was consistently alert and oriented in all spheres, and maintained his grooming and hygiene. He reported social isolation, but occasionally visited his brother and enjoyed meals with him to celebrate birthdays. The Veteran gardened throughout the growing seasons on appeal, and he even joked with his psychiatrist about his gardening habits. He also stated that he watched television and read books in his free time. While he primarily socially isolated, he also reported doing well and enjoying trips to his winter home. The Veteran’s mental faculties remained intact throughout this period, and he routinely denied symptoms of hallucinations, delusions, and paranoia to his treating psychiatrist. He continues to perform the activities of daily living, including maintaining his hygiene and grooming, as well as engaging in physically active activities such as gardening. In sum, the credible reports of the Veteran’s symptoms do not mirror the severity, frequency and duration of ones such as persistent delusions or hallucinations, or inability to attend to basic hygiene. While the Veteran certainly continues to cope with serious manifestations of his PTSD, they do not rise to the level of a total occupational and social impairment as contemplated by the rating schedule. As the preponderance of the evidence weighs against the claim for an evaluation in excess of 70 percent, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran’s claim of entitlement to an evaluation in excess of 70 percent must be denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, 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.