Citation Nr: 21004027 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 10-21 405 DATE: January 25, 2021 ORDER A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s service-connected PTSD has not been manifested by total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to September 1969, including service in the Republic of Vietnam, for which he was awarded Purple Heart. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was most recently before the Board in April 2019, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. The Board notes that in April 2019, a claim for a total disability rating based on individual unemployability (TDIU) based solely on the Veteran’s PTSD was also remanded for further development. In an October 2020 rating decision, that claim was granted from the date he lasted worked, and the Veteran was awarded special monthly compensation (SMC) at the housebound rate. Accordingly, the claim for TDIU based solely on PTSD is no longer before the Board. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). 1. Entitlement to a rating in excess of 70 percent for PTSD Pursuant to the General Rating Formula for Rating Mental Disorders (General Rating Formula), a 70 percent 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 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, or 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 the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411.   A maximum 100 percent rating is warranted 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or effects thereof, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran’s PTSD and their effect on the level of occupational and social impairment. Id. When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2020). The United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and that “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, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. Upon review of the record, the Board finds that a rating in excess of 70 percent is not warranted at any time during the period under review. The Veteran underwent a VA examination in January 2008, during which he endorsed symptoms of nightmares, irritability, exaggerated startle response, depression, anxiety, and sleep disturbance. The Veteran reported working as a nuclear technologist at a hospital and stated that he was able to function at his job, but he experienced extreme frustration and felt depressed from time to time. He became very tearful, restless, and agitated when describing his military trauma, and the examiner indicated that the Veteran clearly experienced emotional lability with high levels of anxiety, irritability, and inner psychic agitation. However, he displayed a full range of affect and expression, was oriented, and had excellent judgment. The Veteran’s speech and memory were within normal limits, and he was able to perform all activities of daily living. The examiner indicated that the Veteran could be dissociative at times, but there was no evidence of any thought disorders, delusions, hallucinations, or disorganized thinking. The examiner characterized the Veteran’s occupational and social impairment as moderate. In February 2009, the Veteran was admitted for inpatient mental health treatment due to sudden, deep depression and suicidal ideation. There was no evidence of hallucinations, delusions, paranoia, or obsessions. The Veteran was oriented and cooperative, and his though process and memory were normal. Insight and judgment were fair. It was noted that the Veteran’s mood improved rapidly during the course of treatment, and he did not appear to present any danger to himself or others upon his discharge five days later. A March 2011 mental residual functional capacity assessment conducted pursuant to a claim for disability benefits from the Social Security Administration (SSA) indicates that the Veteran exhibited some social isolation and avoided crowds, but he was able to perform all activities of daily living, including driving, shopping, and handling money. During an August 2012 VA examination, the Veteran endorsed symptoms of depressed mood, anxiety, intrusive memories, avoidance, occasional nightmares, irritability, and hypervigilance. He reported that his anxiety had decreased some after retiring in 2010 and moving to Florida. It was noted that the Veteran was actively involved in daily activities, including golfing, taekwondo, and exercising in the pool. There were no deficiencies in attention, concentration, memory, or problem solving. The examiner characterized the Veteran’s level of impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. A February 2015 assessment by a Vet Center therapist indicates that the Veteran was emotionally distant from friends and family and maintained limited interactions with peers. It was noted that the reported significant depression of such a debilitating nature as to interrupt his activities of daily living, suppress his appetite for days, and result in neglect of person hygiene until prompted to shower, shave, and put on clean clothing. It was also noted that the Veteran struggled with nightmares, flashbacks, hostility, irritability, hypervigilance, explosive anger, suicidal ideation, and problems with recent and recall memory, such as forgetting names of lifelong friends. The therapist indicated that the Veteran demonstrated total impairment in social, occupational, and interpersonal functioning. During the April 2015 Board hearing, the Veteran testified that he experienced daily intrusive memories of Vietnam, nightmares, and anxiety and that he was becoming increasingly more withdrawn and angry. He stated that he regularly exercised and swam laps to help with his depression, but he did not talk to anyone at the pool. He also reported some problems wish short-term memory, noting that when he volunteered, he had to read things a few times before understanding them. The Veteran underwent another VA examination in March 2016, during which he endorsed symptoms of depressed mood, anxiety, hypervigilance, avoidance, chronic sleep impairment, disturbances of mood or motivation, and irritability. He reported a history of suicidal ideation since his service ein Vietnam, but he denied any current plan. There was no evidence of behavioral problems or substance abuse. The Veteran reported traveling to Massachusetts in August to visit family and discussed two upcoming trips to visit family in North Carolina and Massachusetts. He also reported golfing twice a week, going out to eat and to the movies with his wife, and helping with household chores. The examiner characterized the Veteran’s level of functioning as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. A March 2017 private psychological evaluation report indicates that the Veteran endorsed symptoms severe depression, suicidal ideation without plan or intent, nightmares, difficulty sleeping, memory loss, attention difficulties, low motivation, social isolation, angry outbursts, unusual fears, hypervigilance, excessive worry, tightness in the chest, and feeling uptight and shaky. It was noted that the Veteran drove independently and had no difficulties with basic activities of daily living. The psychologist indicated that the Veteran reported to the evaluation independently; he appeared appropriately dressed and groomed; he was oriented and cooperative; his thoughts were logical; his recent and remote memory were adequate; and he was able to comprehend and follow instructions and questions without difficulty. The Veteran underwent another VA examination in July 2017, during which he endorsed symptoms of depressed mood, anxiety, hypervigilance, avoidance, chronic sleep impairment, and irritability. He denied any current suicidal or homicidal ideations. The Veteran was oriented, cooperative, and well groomed. His speech was normal, and his thoughts were linear, logical, and goal directed. Insight and judgment were intact, and there was no evidence of perceptual disturbances, paranoia, or delusional thinking. The examiner indicated that the Veteran was able to perform activities of daily living independently and was capable of managing his own financial affairs. It was noted that the Veteran’s mental health treatment records since his last VA examination showed that he reported increased depression, but he continued to play golf and have breakfast with friends on Saturdays, went on two cruises with his wife, and traveled to Maine for the holidays. The examiner characterized the Veteran’s level of functioning as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. A review of the Veteran’s treatment records do now show symptoms more severe than those noted during the VA examinations. In summary, the record shows that the Veteran performed activities of daily living independently, maintained some social relationships, engaged in leisure activities, and traveled. Although the February 2015 Vet Center therapist indicated that the Veteran demonstrated total impairment in social, occupational, and interpersonal functioning, the Board finds that characterization to be inconsistent with the Veteran’s other treatment records. VA mental health treatment records from the months before and after that assessment show that the Veteran consistently had good personal hygiene, and he reported playing golf regularly, interacting with friends and family, taking trips, and occasionally volunteering at a local health department. His treatment providers indicated that there were no signs or reports of anger issues other than the Veteran’s wife noting in December 2014 that the Veteran got “snippy” with her at times. However, she stated that those instances were rare, only lasted a few minutes, and were never threatening or violent in any way. Moreover, there has been no evidence of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time and place; or memory loss for names of close relatives, own occupation, or own name. Accordingly, the Board concludes that the preponderance of the most probative evidence is against a finding of total social and occupational impairment, and a 100 percent rating is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.