Citation Nr: 21062243 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-54 934 DATE: October 6, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT During the period on appeal, the Veteran's service-connected PTSD was manifested by symptoms which caused occupational and social impairment with deficiencies in most areas; the symptoms did not cause total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1970 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted service connection for PTSD and assigned a 70 percent rating, effective October 31, 2012. This matter was previously before the Board in November 2018. At that time, the Board remanded the claim, as well as the inextricably intertwined claim for entitlement to a total disability rating based on individual unemployability (TDIU), for further development, to include a VA examination. While the matter was in remand status, in a July 2021 rating decision, the RO, inter alia, granted TDIU due to PTSD, effective October 31, 2012. The Board finds that this is a full grant of the benefits sought on appeal, and that claim has been resolved. Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Entitlement to an initial rating in excess of 70 percent for PTSD is denied. Disability evaluations are determined by the application of a schedule of ratings, which is based on the Veteran's average impairment of earning capacity resulting from such disabilities. 38 U.S.C. § 1155, 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's PTSD has been rated under the criteria contained in the General Rating Formula for Mental Disorders. Under those criteria, a 70 percent rating is assigned when there is objective evidence demonstrating 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. A 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 or place, memory loss for names of close relatives, own occupation, or own name. Id. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held 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 explained that in the context of a 70 percent rating, section 4.130 "requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 118. The Federal Circuit indicated that "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his PTSD is more severe than currently rated. VA medical records obtained in connection with the Veteran's claim demonstrated that the Veteran's symptoms included depression, anxiety, and irritable mood. See 2013-2021 VAMC records. The Veteran was afforded a VA examination in January 2013. With regard to marital and family relationships, the Veteran reported that he was married with adult children and grandchildren. He reported "some friends." Occupationally, the Veteran reported that he had been working as a certified electrician. He reported that he had been in receipt of Social Security Administration (SSA) disability benefits since 2006 due to nonservice-connected stroke and prostate cancer. The Veteran's PTSD symptoms included depressed mood, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. On physical examination, the Veteran was found to be alert, cooperative, and casually dressed. He was oriented to person, place, and time. His mood level and affect were found to be appropriate. Impairment of thought process or communication was not found. Rate and flow of speech were normal. Delusions and/or hallucinations were not noted. Obsessive or ritualistic behavior which interfered with routine activities was not found. The examiner noted memory loss or impairment, explaining that the Veteran had problems remembering details. The examiner also noted that the Veteran experienced hopelessness about his symptoms, irritable outbursts, and sleep impairment. Panic attacks were not noted. Suicidal or homicidal ideation was not found. With regard to effects of the Veteran's PTSD on occupational and social functioning, the examiner concluded that the Veteran's symptoms caused reduced reliability and productivity. In support of his claim, the Veteran submitted statements from his spouse and son, to the effect that the Veteran was short-tempered, angry, and aggressive. His spouse stated that sometimes he was abusive. They indicated that the Veteran had a hard time dealing with people, including his family, and did not deal well with stress. See statements received in January 2013. In a November 2014 vocational opinion, Dr. S.B. opined that the Veteran's PTSD and other service-connected disabilities rendered him unable to maintain substantial gainful employment. See November 2014 Vocational Opinion received in November 2016. An August 2016 VA treatment record noted the Veteran's reports that he was doing well. The Veteran reported that his relationship with his wife was stable. He reported that they had been married for 30 years and had 2 children and 2 grandchildren, aged 9 and 2. The Veteran reported that his PTSD symptoms were stable and that his medication was helpful. He reported looking forward to watching football and that he was currently watching the Olympics. The Veteran reported that he spent most of his time inside due to the hot weather. He denied suicidal and homicidal ideation. See August 2016 Psychiatry Attending Note. A September 2018 VA treatment record noted the Veteran's reports that he was doing well overall. The Veteran reported that his relationship with his wife was good. The Veteran indicated that his lease ended in April and that he and his wife were thinking of buying a home. He reported that he had been staying inside mostly when the weather was hot or wet. He reported maintaining his interest in activities, such as keeping up with sports. The Veteran denied suicidal or homicidal ideation and worsening mood and found medications to be helpful. See September 2018 Psychiatry Attending Note. A July 2019 VA treatment record noted that the Veteran denied major changes in health or mood. The Veteran reported that he stayed inside. He reported that he enjoyed watching sports and looked forward to college football and NFL next month. He reported that he recently visited family in North Carolina and that he and his wife were still saving money to buy a new home. See July 2019 Psychiatry Attending Note. The Veteran was afforded another VA examination in September 2019. With regard to marital and family relationships, the Veteran reported that his wife and daughter worked and that he stayed home and babysat his 5-year-old grandson. He indicated that he "really enjoy[ed] it." The Veteran reported that he seldom left the house, except to go to appointments or to a buffet. He reported that he had 3 friends with whom he got together once a month to play cards. The Veteran's PTSD symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. On physical examination, the Veteran was found to be neatly groomed and casually dressed. He was cooperative during the evaluation. His mood was neutral, and affect was flat. He was alert and oriented. Immediate memory was good; delayed recall was poor. Fund of information was good. The Veteran's communication skills were found to be good. Abstract thinking and judgment were good. Thoughts were clear and logical. Thought content was unremarkable. There were no signs of delusions, hallucinations, or suicidal or homicidal ideation. The Veteran reported that his sleep was "not good," explaining that he only slept 4 or 5 hours most nights. He also reported that his energy level was low. With regard to effects of the Veteran's PTSD on occupational and social functioning, the examiner concluded that the Veteran's symptoms caused deficiencies in most areas. A June 2021 VA treatment record noted the Veteran's reports that he was doing fairly well. He reported mostly staying inside with all of the recent hot weather. He denied complaints or worsening mood. The Veteran reported that his interests were good and that he was looking for a cooler week to see drag races or go to the beach. He denied suicidal thoughts. See June 2021 Mental Health Telephone Encounter Note. Applying the criteria set forth to the facts in this case, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 70 percent for the Veteran's service-connected PTSD. 38 C.F.R. § 4.3, 4.7. The Board has carefully considered the next higher rating of 100 percent, and the symptoms delineated in the rating criteria. After thorough review of the January 2013 and September 2019 VA examinations, November 2014 vocational opinion, and the medical and lay evidence of record, the Board finds that the 70 percent rating most closely approximates the Veteran's current disability picture and that the preponderance of the evidence is against the assignment of a 100 percent schedular rating. In that regard, the record shows that the Veteran's PTSD did not produce total occupational or social impairment. Although he clearly had difficulties with personal relationships, the record demonstrated that he maintained social contacts and relationships during this period, as described above. After thorough review of all evidence of record, the Board finds that the evidence demonstrates that the Veteran's psychological symptoms for the entire appeal period are, at most, indicative of occupational and social impairment with deficiencies in most areas. The Veteran's PTSD was not shown to result in total occupational and social impairment at any time during the appeal period. As noted earlier, the Veteran did not suffer from gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Specifically, as set forth in more detail above, the medical evidence of record demonstrates that the Veteran had normal speech and logical thought process. The medical evidence of record does not contain reports of persistent delusions or hallucinations. Intermittent inability to perform activities of daily living was not found. The Veteran was oriented to person, place, and time. The Veteran's behavior was not determined to be grossly inappropriate. Although the Veteran's spouse and son stated that he was short-tempered, angry, and aggressive, and his spouse indicated that he was sometimes abusive, impaired impulse control, such as unprovoked irritability with periods of violence, is already contemplated in the 70 percent rating. As the Veteran's behavior does not rise to the level of grossly inappropriate, a 100 percent rating is not warranted based on this symptom. (Continued on the next page) The evidence of record also indicates that the Veteran was not in persistent danger of hurting himself or others. The January 2013 and September 2019 VA examinations did not note the presence of either suicidal or homicidal ideation. In addition, the medical evidence of record does not indicate that the Veteran was in persistent danger of hurting himself or others. Additionally, the Veteran reported having a relationship with his wife, children, grandchildren, and a few friends. These relationships indicate that the Veteran did not suffer from total social impairment. The Veteran also reported enjoying spending time with his grandson and watching football. In summary, the Board has considered all of the Veteran's PTSD symptoms that affect the level of occupational and social impairment. After so doing, the Board concludes that the preponderance of the evidence is against the assignment of a rating in excess of 70 percent, as the Veteran's PTSD does not result in both occupational and social impairment. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.