Citation Nr: 21064040 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-44 483 DATE: October 18, 2021 ORDER Entitlement to a 100 percent schedular rating for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran's PTSD is not shown to at any time under consideration have been manifested by symptoms productive of total occupational and total social impairment. CONCLUSION OF LAW A 100 percent schedular rating for the Veteran's PTSD is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code (Code) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from July 1985 to April 1988, February 2004 to May 2005, and from December 2005 to April 2007. This matter is before the Board on appeal from an August 2015 Department of Veterans Affairs (VA) rating decision. In March 2019, the matter was remanded for additional development. The March 2019 Board remand also addressed entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). A July 2020 rating decision granted the Veteran a TDIU rating effective June 24, 2014, the day following his last day of employment. The matter of entitlement to a TDIU rating prior to June 24, 2014 is not raised by the record because the Veteran was then employed. Entitlement to a 100 percent schedular rating for PTSD is denied. On June 2015 VA examination, the Veteran reported a loving and caring marriage to his wife of five years, and that she was "very helpful". He reported that his teenaged daughter lived with them and they had a wonderful relationship, and he was in daily contact with his best friend with whom he also had weekly visits. He reported visiting with his wife's parents at least twice a month, and that he had met several other friends in town. He was independent in activities of daily living, and he and his wife were both responsible for finances within the home. He took care of his own hygiene, maintained his own medications and medical appointments, prepared meals, drove his wife to and from work, and did some housework. He reported that he had never been hospitalized for psychiatric problems. On mental status examination, the Veteran's reported symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances 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 work-like setting. Rapport was easily established and he maintained good interest and effort. His activity level was normal and he had appropriate persistence. His attention and concentration were good. His speech was clear and fluent and his language skills were good. His thought processes were generally logical and goal-oriented and there were no signs of a thought disorder. His thought content was appropriate. He denied having suicidal or homicidal ideation and having auditory hallucinations, delusions, or paranoia, but reported seeing shadow objects daily. The examiner opined that the psychiatric diagnoses result in occupational and social impairment with deficiencies in most areas. Based on this evidence, the August 2015 rating decision on appeal continued a 70 percent rating for PTSD. On October 2016 VA examination, the Veteran described his marriage as good and supportive. He reported that he occasionally camps/hunts and enjoys cooking, primarily due to the fact that they are solitary activities. He reported having two close friends. He reported working out at a gym for one hour daily and found it helpful with his symptoms. His reported symptoms included depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances 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 work-like setting. On mental status examination, he was fully oriented and well dressed, with generally agitated mood, flat affect, and low to moderate eye contact. His insight and thought process were within normal limits. He denied current suicidal ideation. He had high levels of irritability. He reported occasional visual images/hallucinations and feeling "fuzzy" much of the time. He was capable of managing his financial affairs. The examiner opined that the Veteran's psychiatric diagnoses result in occupational and social impairment with reduced reliability and productivity. On September 2017 VA examination, the Veteran's reported symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or a work-like setting, inability to establish and maintain effective relationships, and persistent danger of hurting self or others. On mental status examination, he had distant rapport and exhibited mild psychomotor retardation. His eye contact was adequate and speech was normal. His thought process was organized and logical, and there was no evidence of delusions. There were frequent symptoms of depersonalization and derealization. His mood was moderately anxious and depressed and his affect was restricted. He was fully oriented and alert. His memory was intact and his concentration, impulse control, insight, and judgment were adequate. He had ongoing intrusive thoughts about events he experienced in service, frequent flashbacks, and daily nightmares. He had moderate anhedonia and symptoms of emotional numbness and frequent irritability. He reported difficulty with concentration and focus. He was capable of managing his own financial affairs. The examiner opined that the Veteran's psychiatric diagnoses result in occupational and social impairment with deficiencies in most areas. On December 2019 VA examination, the Veteran reported living with his wife, adult daughter, and grandson. He reported that his marriage was stable and his wife was supportive. He reported having regular contact with a second adult daughter, and good relationships and regular contact with his three surviving siblings. He reported having minimal other social engagement. He reported he drove his wife to work. He reported that being easily startled and hypervigilant, intrusive thoughts several times a week, generalized anxiety with panic attacks three times a week, lasting for 30 to 60 minutes, and that he calmed himself by walking. He reported feeling disconnected from others, problems experiencing positive emotions, and that he was pessimistic about the future. He denied having suicidal or homicidal ideation. On mental status examination, the Veteran was described as casually dressed and appropriately groomed, somewhat friendly upon approach, and easily engaged in conversation. His eye contact was good, and his speech was normal as to rate and somewhat loud in volume. He was fully oriented, and his judgment was intact and functional. His concentration and attention were present and sustained but appeared easily disrupted. His memory was normal; thought processes were logical and goal-directed with no reported disturbance; and mood was dysphoric and anxious with flattened affect. He was capable of managing his financial affairs. His reported symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or a work-like setting, and inability to establish and maintain effective relationships. The examiner opined that the Veteran's psychiatric diagnoses result in occupational and social impairment with deficiencies in most areas. Treatment records reflect symptoms largely similar to those described on the VA examinations. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 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. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Code 9411 and the General Rating Formula for Mental Disorders. 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 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. 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. 38 C.F.R. § 4.130, Code 9411. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remissions. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The reports of the VA and private examinations, treatment records, lay statements, and hearing testimony, overall, do not show that at any time under consideration the Veteran's psychiatric disability was shown to be productive of both total occupational and total social impairment, so as to warrant a 100 percent schedular rating. He has not reported any hospitalizations for psychiatric disability during the evaluation period, or indeed at any time, and none are shown in the record. While observations by VA and treatment providers suggest that during the evaluation period he has had increasingly limited social relationships, and increased withdrawal, such impairment is encompassed by the criteria for the 70 percent rating currently assigned (which contemplates deficiencies in most areas). What is significant is that he continued to function adequately in activities of daily living, managed his own finances, maintained several close familial relationships, drove (including taking his wife to work), prepared meals, and tended to his home regularly, all of which are inconsistent with a disability picture of total occupational and total social impairment, and are persuasive evidence that he has not had total social impairment. The disability picture presented simply does not reflect impairment consistent with the criteria for a 100 percent schedular rating, and such rating is not warranted. The Board notes the lay statements submitted by the Veteran in support of this claim. They describe the types of problems that result from his psychiatric symptoms. The level of functioning impairment he describes is encompassed by the criteria for the 70 percent rating assigned; they do not support that he had total social impairment for any distinct period of time during the evaluation period. Thus, even his own lay statements do not support that a 100 percent schedular rating is warranted. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.