Citation Nr: 21061932 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 16-30 990 DATE: October 5, 2021 ORDER Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) with unspecified depressive disorder is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) with unspecified depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.126, 4.130 Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Marine Corps from June 1965 to June 1969, with two tours of duty in Vietnam. The Veteran is highly decorated, having received the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Presidential Unit Citation, among others. This matter comes before the Board of Veterans' Appeals (Board) from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran had a hearing before a Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the electronic claims file. In an August 2019 decision, the Board remanded the issue for further development, as relevant evidence had been submitted into the record after a statement of the case (SOC) had been rendered but prior to transfer to the Board. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). In August 2021 the Veteran was contacted by the Board to inform him that the VLJ who conducted his hearing was no longer available to render a decision on his claim. The Veteran was offered a new Board hearing. It was noted that if no response was received within 30 days of the letter, the Board would presume that the Veteran was satisfied with his previous hearing and the claim would be adjudicated accordingly. The Veteran has not responded to that letter, and the Board will thus proceed with adjudication. The Board is satisfied that there was substantial compliance with the remand orders and no response noted from the Veteran regarding the August 2021 correspondence. Therefore, the Board 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). Entitlement to an evaluation in excess of 70 percent for PTSD with unspecified depressive disorder The Veteran contends that he is due an entitlement in excess of the 70 percent disability rating he is currently receiving for PTSD with an unspecified depressive disorder. 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 Veteran's PTSD has been rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, as 70 percent disabling for the entire period on appeal. Under this diagnostic code, 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. This appeal was certified to the Board initially in July 2016. Therefore, the new version of the Schedule for Rating Disabilities is applicable. In the March 2017 and October 2018 VA examinations, the examiners specifically referenced the diagnostic criteria from the DSM-5, and 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. Throughout the record, the Veteran's symptoms have been consistent. In July 2013, the Veteran was afforded a VA examination where he was found to be diagnosed with PTSD. The Veteran was tearful in the interview and reported taking unnecessary risks such as driving without his headlights down the highway or starting bar fights unprovoked. The Veteran also stated that he was getting four to five hours of sleep a night and was suffering from nightmares and flashbacks. The Veteran also reported that his mood is unhappy, he lacks motivation, is sad, lonely, and lacks an appetite. The examiner found the Veteran to have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and mood. For VA rating purposes, the examiner found symptoms to be depressed mood, anxiety, chronic sleep impairment, mild memory loss (forgetting names, directions, recent events), disturbance in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or worklike setting, inability to establish and maintain effective relationships. The Veteran's file contains copious amounts of therapy notes and treatment records from the Mission Valley VA, Chula Vista Community Based Outpatient Clinic (CBOC), and the San Diego VA Medical Center (VAMC). The records span from 2008 up through 2020. These records consistently report the Veteran's diagnosis of PTSD and depression as well as his symptoms of intrusive thoughts, insomnia, nightmares, agitation, loneliness, isolation, nightmares, low mood, loss of interest in activities, anger episodes, short term memory loss, and survivor's guilt, as well as previous thoughts of suicide and self-harm. The Veteran was afforded another VA examination in October 2014. The examiner found the Veteran to have PTSD and unspecified depressive disorder. The examiner stated that the Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking, and mood. For VA rating purposes, the symptoms were found to be depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and obsessional rituals which interfered with routine activities. The Veteran reported he was marginally better since his prior examination but that he continued to experience significant limitation due to his PTSD. He reported that his medication improved his sleep, but he continued to feel fatigued during the day. In April 2015, the Veteran's VA psychiatrist, Dr. M.T., wrote a letter stating that the Veteran has been unable to work for the last five years and noted that PTSD treatment will be required for the foreseeable future as the condition has worsened since his initial diagnosis in 2012, as he has not been able to sustain meaningful employment. The Veteran then received another VA examination in March 2017. Again, the examiner found a diagnosis of PTSD under DSM-5 criteria that led to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and mood. The examiner also found that the Veteran endorsed distressing dreams that occur often with struggles to recall specific content of his dreams but with the Veteran often waking in a state of panic as evidenced by shallow breathing, sweating, and feeling terrified. The Veteran also reported experiencing intrusive thoughts related to Vietnam that occur both spontaneously and when triggered by specific stimuli. The Veteran claims that he attempted to avoid triggers as much as possible. The Veteran also expressed that he felt continuously depressed on most days and endorsed hopelessness stating that he did not care "if it was his time to go." The examiner reported that the Veteran is distant and disconnected from nearly all social contacts. The Veteran reads alone in his room for most of the day and denied other leisurely pursuits. He had cognitive distortions about himself, the world, and others. He was also noted to specifically harbor excessive guilt and self-blame. The Veteran also complained of persistent hyperarousal, poor sleep (usually no more than 3-4 hours of broken sleep per night). He stated that he is preoccupied with safety in his home and has multiple doors and locks, which he checks often throughout the day and night. He also has several makeshift weapons in the home in case he is burglarized. The Veteran avoids public places if possible and provided the example of running errands as soon as stores open to avoid larger crowds. He often is in altercations with other patrons but then feels guilty and remorseful for losing his temper. The Veteran startles easily to loud or unexpected noises, especially as he frequently finds himself lost in thought. For VA rating purposes, the examiner found symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances include work or a worklike setting, and impaired impulse control, such as unprovoked irritability with periods of violence. In October 2018 the Veteran again had a VA examination. The examiner noted the Veteran to have a diagnosis of PTSD. The examiner also found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and mood. For VA rating purposes the examiner reported symptoms of depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a worklike setting. Finally, the Veteran reported a history of suicidal thoughts. The Veteran head a Board hearing in March 2019. At that time the Veteran specifically testified that he did not have impairment of thought processes or communication, he did not have persistent delusions or hallucinations, did not currently have thoughts of harming himself, does not present inappropriate behavior while in public, and takes care of his daily hygiene and general cleanliness. The Veteran reported some intermittent disorientation to what day it is but not to any place. The Veteran also testified that he did not forget his own name, or names of close relatives. The Veteran then had another VA examination in April 2019. The examination did show some improvement of his PTSD symptoms. The examiner noted that the Veteran had 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. The examiner also reported that the symptoms for VA rating purposes only presented as depressed mood, anxiety, and chronic sleep impairment. However, the Veteran still stated that he could go for a couple of weeks where he just cries and does not want to leave the house. He feels sorry for himself, feels worthless and reports that he gets edgy and stated that he hates his life. After a full and thorough review of the evidence, the Board finds that the Veteran's PTSD and unspecified depressive disorder does not warrant a rating in excess of the 70 percent currently assigned. The Veteran has consistently been shown to present symptoms contemplated by a 70 percent rating for PTSD such as unspecified depressive disorder based on: forgetting names, unprovoked irritability with periods of violence, occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, or mood, suspiciousness, depressed mood, disturbances of motivation and mood, mild memory loss, forgetting recent events, impaired impulse control, chronic sleep impairment, difficulty in adapting to stressful circumstances, difficulty in adapting to work, difficulty in adapting to worklike setting, anxiety, difficulty in establishing and maintaining effective work and social relationships, and some intermittent suicidal ideation in his past. 38 C.F.R. § 4.130. However, the Board finds that the Veteran does not present the symptoms of such severity to warrant a 100 percent evaluation. As noted above, 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. Compellingly, the Board notes that on each of the Veteran's examinations, the examiners not only found none of these symptoms to be present, but specifically each found him not to experience total social and occupational impairment. Additionally, none of the VA treatment records show these symptoms. Finally, the Veteran specifically testified against having any of these symptoms at the Board hearing. The Veteran's reported social functioning has been fairly consistent throughout the period on appeal, with social isolation and some interaction. For instance, he reported having a "network of friends and family" he could rely upon at a November 2019 treatment visit. He similarly reported at his December 2015 VA examination that he is in touch with his children and grandchildren, and stated at the October 2018 VA examination that he has "social support" from his family. Thus, while limited, he was still able to continue relationships with some people, including multiple family members. Although he experienced unemployment during the appeal period, a rating of 100 percent is only warranted for both total social and total occupational impairment due to his PTSD. The Board concludes the criteria for a 100 percent rating for PTSD have not been met at any point during the period on appeal. 38 C.F.R. § 4.130, DC 9411. His own reports at various evaluations regarding how his service-connected psychiatric disability impacts him, overall, would provide additional evidence against this claim, clearly indicating the level of symptomatology cited within the 100 percent rating have not been met in this case. In summary, while the Veteran was significantly socially limited by his service-connected PTSD, the evidence fails to show that this impairment was "total" so as to warrant a 100 percent rating. Based on the foregoing discussion, the Board finds that Veteran's PTSD with unspecified depressive disorder most nearly approximates the rating criteria for a 70 percent rating. As such, a rating in excess of 70 percent is not warranted. The claim is denied. Caroline B. Fleming 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.