Citation Nr: 21000736 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-42 130 DATE: January 6, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s symptoms of PTSD do not more nearly approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for the assignment of a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the US Marine Corps from January 1971 to August 1973. This matter comes to the Board of Veterans’ Appeals (Board) from an October 2013 rating decision. The Board then remanded the issue for further development and an additional VA examination in March 2019. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). The Board is now satisfied that there was substantial compliance with its remand orders and is prepared to adjudicate the issue at hand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2018, the Veteran had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. As noted in the prior Board remand, during the Veteran’s hearing he reported that he had not worked since 2011 due to his PTSD and as such raised the issue of entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009) During the pendency of the appeal, the RO issued a September 2020 rating decision, granting the Veteran entitlement to individual employability due to the fact that the Veteran had been unable to secure substantially gainful employment as a result of his service-connected disabilities since March 2012, the entire period on appeal. 38 C.F.R. § 4.16. As such, the issue of TDIU is no longer before the Board. Furthermore, as the Veteran is only in receipt of service connection for PTSD and has no other service-connected disabilities independently ratable at 60 percent and further consideration of Special Monthly Compensation is not necessary at this time. Akles v. Derwinski, 1 Vet. App. 118 (1991). Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) The Veteran is currently rated at 70 percent for his service-connected PTSD and contends that his symptoms are more severe than they are currently rated. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. See 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 rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). The rating criteria for rating mental disorders reads as follows: A 100 percent rating requires 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. 38 C.F.R. § 4.130. A 70 percent rating requires 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. Id. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove references to the DSM-IV and replace them with references to the updated DSM, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094; 38 C.F.R. § 4.125. The provisions of the final rule apply to all applications for benefits that are received by VA or that were pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014. VA has clarified that the provisions of the rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. The instant appeal was originally certified to the Board in December 2016. Therefore, the new version of the Schedule for Rating Disabilities is applicable. In the October 2019 VA examination, the examiner specifically references the diagnostic criteria from the DSM-5, therefore the VA is in full compliance. Evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Federal Circuit explained that the frequency, severity, and duration of the symptoms also played an important role in determining the rating. Id. at 117. Significantly, however, 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. 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). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). The Board shall consider all information and lay and medical evidence of record in a case before it, with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465 (1994). In determining whether an increased disability rating is warranted, 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran underwent an initial VA examination in November 2012. The examiner found that the Veteran had a diagnosis of PTSD under DSM-IV criteria, the VA approved criteria at the time. The examiner also diagnosed the Veteran with major depressive disorder and determined that it was not possible to differentiate the symptoms of irritability, insomnia, poor concentration, and social withdrawal between the depressive disorder and the PTSD. Instead, the examiner opined that each symptom was a portion attributable to each mental health diagnosis. The examiner also determined that there was occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. The examiner explained that irritability would likely cause problems if the Veteran was still working and also noted that irritability and social withdrawal causes problems socializing. However, the examiner stopped short of determining that the Veteran exhibited total occupational and social impairment. The Veteran had been married and separated. He had 2 children with minimal contact. He had no relatives, close friends and was socially withdrawn. He spent time reading and volunteering at a civilian help line. He last worked in 2011 but lost the job due to losing his license. Symptoms included depressed mood and chronic sleep impairment, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting. Other symptoms included avoiding crowds. The Veteran received another VA examination in August 2013. The examiner explained the symptoms from PTSD included nightmares, flashbacks, intrusive thoughts psychological distress at exposure to cues efforts to avoid all related to the trauma, diminished interest or participation in activities, detachment/estrangement from others, difficulty falling/staying asleep, irritability, anger, watchfulness. The symptoms related to depressive disorder included sadness, low self-esteem, feeling of guilt and worthlessness. Symptoms that overlapped the two disorders included sadness, anxiety, sleep impairment, disturbances of motivation and mood, difficulty in establishing/maintaining effective work and social relationships, decreased ability ot adapt to stress, decreased ability to establish and keep relationships. Despite attributing the symptoms to each disability, the examiner also reported it was not possible to differentiate symptoms due to the overlapping symptoms. Notably, the examiner opined that the Veteran was occupationally and socially impaired with reduced reliability and productivity, a lower evaluation than the occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood that the November 2012 examiner found. The Veteran also reported receiving regular, ongoing treatment at the Key West VA clinic for his mental health. The Veteran reported having some telephone contact with his two daughters. He felt his symptoms have exacerbated due to pressure and frequent supervision of the staff. Symptoms reported during the examination included depressed mood, anxiety suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships. The Veteran testified at an August 2018 hearing in front of a VLJ after filing a Form 9 appeal to the Board. At the hearing, he reported not having gainful employment since 2008 and reported not having any employment since April 2011. He reported that his stress has built up over the last couple years. The Veteran also indicated that he found himself crying “at the drop of a hat” and having trouble keeping up with good hygiene habits, reporting that he would go a week without bathing. He reported that loud noises bother him, and he is jumpier than he should be. He explained it was hard to open up to the VA examiners and that the telehealth physicians couldn’t tell his true state like that he hadn’t bathed, or his clothes were ragged, so it was easier to hide symptoms. The Veteran also made lay statements about how he suffered from memory loss due to his PTSD as well. In the October 2019 VA exam, the examiner determined that there was occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. Once again, the examiner did not find the Veteran to be exhibiting enough symptoms to find him totally occupational and socially impaired. The Veteran reported he had not been in a relationship since 2001. He described minimal contact with his daughters, mainly by test a few times a year. He had one close friend who he checked in on daily but no other friends or participation in social activities. He last worked in 2011. While he did some volunteer work in the past, he also found the stress from that became too much and had not volunteered for at least two years. The examiner reported symptoms of irritability, a short temper, crowd anxiety, social isolation, poor concentration, forgetfulness, significant anxiety, intrusive thoughts and nightmares, significant avoidant behavior, suspiciousness, difficulty trusting others, depressed mood, neglect of personal hygiene, procrastination, trouble sleeping, and an avoidance of responsibility. The examiner did say that due to the known overlap of symptoms, it was impossible to separate the independent effects of the Veteran’s PTSD from those of the Veteran’s depressive disorder. Other symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty adapting to stressful circumstances and inability to establish and maintain effective relationships. On mental status examination he was dysthymic with a somewhat blunted affect. He was oriented in all spheres but somewhat disheveled appearance. Speech was within normal limits. He had some difficulty remaining focused and on topic. He denied hallucinations or delusions, suicidal ideation or homicidal ideation. Insight and judgement were adequate. Finally, the examiner opined that due to the Veteran’s low frustration tolerance and difficulty getting along with other associated with his PTSD, he could not serve in any position requiring frequent contact with the general public or in a team environment. The examiner also opined that he would have difficulty working in any environment that could become crowded given his difficulty managing stress and his tendency to become easily overwhelmed. Furthermore, the Veteran would need to work in a flexible environment where he could leave for periods of time to calm his nerves. Finally, due to the Veteran’s impaired attention span and forgetfulness, he would likely need constant supervision to be reminded of his task. VA outpatient treatment records reflect the Veteran sought treatment for the condition. He frequently described depressed mood and disturbed sleep among other symptoms. Generally, he denied psychotic symptoms or suicidal thought. He was generally noted to have appropriate dress and grooming. He was always fully oriented. Speech was usually described as within normal limits. Thought process was also within normal limits. An April 2018 treatment record noted he appeared more symptomatic and described him as isolated and easily irritated. A September 2019 record noted that the Veteran no longer appeared to be paying attention to hygiene and just stayed isolated in his apartment. After a full review of the Veteran’s medical records and lay testimony, the Board determines that the Veteran’s claimed entitlement to a rating in excess of 70 percent for service-connected PTSD is denied. Taken altogether, the Veteran’s lay statements and medical records show his symptoms have not manifested to a level where a 100 percent rating would be appropriate. In the case at hand, after reviewing the record and examining the Veteran the examiners all concluded that at worst, the Veteran was determined to have occupational and social impairment with deficiencies in most areas. The Veteran also had symptoms of suspiciousness, depressed mood, disturbances of motivation, mild memory loss, sleep impairment, difficulty in adapting to stressful circumstances, anxiety, and a lack of personal hygiene. These symptoms are all either explicitly listed under the 70 percent rating or are similar in frequency and severity. Unfortunately, while the Veteran does suffer significantly from his service-connected PTSD, the Board finds that the evidence on record does not show the Veteran’s symptoms more nearly approximate the criteria to receive a 100 percent rating. The Veteran does not show any signs of gross impairment in thought or communication, the Veteran has not reported any delusions or hallucinations, the Veteran has not exhibited any grossly inappropriate behavior, he has not created or threatened any harm to himself or others. While he does show some lack of personal hygiene, he testified that this would come and go and he further never exhibited an inability to perform activities of daily living. Finally, there is no evidence to show the Veteran is disoriented to times or places, or that his memory loss is so significant to forget close relatives, his own name, or his occupation. The record reflects that he maintained some minimal contact with his daughters and a friend, and had some hobbies. He was always alert and oriented and had some insight into his condition. The evidence leads to one conclusion: while the Veteran has significant symptoms and deserves significant compensation for his service-connected PTSD and for his individual unemployability, his symptoms and the severity, duration, and frequency of them, do not give rise to a higher evaluation of his disability rating. (Continued on the next page)   The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that the evidence supporting this claim does not rise to the level of equipoise. See Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009). Rather, the preponderance of the evidence is against finding that the Veteran deserves a rating in excess to his current 70 percent rating for service-connected PTSD. 38 C.F.R. §§ 4125, 4.126, 4.130, Diagnostic Code 9411. For these reasons, the benefit-of-the doubt standard of proof does not apply, and the claim for an increased rating must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.L. Aumiller, 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.