Citation Nr: A21017495 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 180913-18899 DATE: October 28, 2021 ORDER Entitlement to a rating greater than 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's PTSD has resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran's PTSD has not resulted in total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a rating greater than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.124(a), 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to November 1968. Following the April 2017 statement of the case, the Veteran submitted an opt-in to the appeals modernization program - higher level review (RAMP) in May 2018. The Veteran perfected an appeal from an April 2016 rating decision. In May 2018, he opted into the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form, selecting the Higher-Level Review lane. The Agency of Original Jurisdiction (AOJ) denied the claim for increased rating in a July 2018 rating decision. The Veteran appealed that RAMP rating decision directly to Board and chose the Hearing option. See RAMP Selection Form 10182 received September 13, 2018. He testified at a hearing before the undersigned in June 2021. The Board may only consider evidence of record as of the July 2018 HLR rating decision on appeal, as well as any evidence submitted by the Veteran or his representative at the June 7, 2021 hearing or within 90 days of that hearing. 38 C.F.R. § 20.302(a). There was no additional evidence was submitted within 90 days pertaining to this issue following the Veteran's June 2021 Board hearing. Entitlement to a rating greater than 70 percent for PTSD The Veteran contends that his service-connected PTSD warrants an evaluation higher than his current 70 percent disability rating. Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of examination. It is the responsibility of the rating specialist to interpret reports of examinations in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Under the provisions of Diagnostic Code 9411, a rating of 100 percent is assignable for 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, Diagnostic Code 9411. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Veteran was assigned a 70 percent evaluation for his PTSD in an April 2016 rating decision. The 70 percent rating was based on a January 2016 Disability Benefits Questionnaire (DBQ) submitted by the Veteran and a March 2016 VA examination. VA treatment records show that the Veteran had an initial evaluation for PTSD in August 2015. The VA provider documented that the Veteran's concentration, appetite and psychomotor were within normal limits. He also is sleeping better since he is using CPAP and has improved energy. The Veteran denied any current suicidal ideation, plan, or intent. He also denied any homicidal ideation or aggressive urges. The provider documented that the Veteran's family and volunteer activities are protective factors. The Veteran's dreams are getting more intense with a recurring theme of fighting off someone who is trying to kill him (the dreams are different than his combat experiences). The Veteran was alert, pleasant with good eye contact, judgement and insight. He had no signs of distress and denied symptoms of distress. The Veteran further denied having any hallucinations or delusions. The January 2016 DBQ characterized the Veteran's PTSD as resulting in occupational and social impairment with reduced reliability and productivity. The Veteran reported having many sight and sound triggers to Vietnam everywhere he goes so he avoids these triggers and social interactions as much as possible. The Veteran also reported feeling danger is always close at hand and engaging in ritualistic behavior of checks all doors, windows and locks and repeatedly checking the house and yard to ensure all areas safe and secure just as he did in Vietnam. The symptoms identified by the provider were depressed mood; anxiety; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; difficulty in understanding complex commands; disturbances in motivation and mood; difficulty in establishing and maintaining effective work and social relationships; obsessional rituals which interfere with routine activities; and persistent delusions and hallucinations. On VA examination in March 2016, the examiner confirmed the Veteran's diagnosis of PTSD and opined that he did not have a history of a traumatic brain injury (TBI). The examiner characterized the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported to the examiner that he sits with his back to the wall in public places. He "hangs out" with friends about once a month and sees his children about once a month. The Veteran further reported that he kept busy mostly by studying all the time. He was hyper-controlling after the war and would blowup disproportionately at little things like a chess game. He initially had constant depression but is only depressed for a day or two now. The Veteran stated that he had suicidal thoughts for about the first five or ten years but not lately; denying he had ever developed a plan. The Veteran also reported engaging for the past two years in a volunteer VA program providing respite care by assisting families of aging military veterans. The Veteran previously worked as a mail carrier before retiring. The Veteran denied being terminated from employment or any major conflicts with peers or superiors. The examiner observed that the Veteran was clean and neatly and appropriately dressed. The Veteran spoke softly but did not stutter, get tangential or reach for words. He denied homicidal ideation and described his excessive anger as cursing when he did not use to curse. He can watch some war movies. The PTSD symptoms identified by the examiner were anxiety; suspiciousness; chronic sleep impairment; flattened affect; disturbances of motivation and mood; inability to establish and maintain effective relationships; suicidal ideation and obsessional rituals which interfere with routine activities. The Veteran testified at a June 2021 Board hearing. During his hearing, the Veteran described that since he retired from the U.S. Postal Service, he has more time to think and believes that his symptoms have worsened since the time he left service and was working fulltime because he was able to isolate himself from others while at work. The Veteran stated he was able to care for himself. The Veteran stated that he gets depressed at times. The Veteran's spouse also testified stating that the Veteran is suspicious that everyone has nefarious intentions. Such as believing his cane was stolen after he lost it. His spouse also stated that for years the Veteran moves a lot more while he is sleeping as if he is having a nightmare but cannot remember any dreams if she awakens him. The Veteran reported having memory loss but denied having impaired judgment. The Veteran's spouse also noted that the Veteran is angered quickly although the Veteran said that he tries to identify and prevent an outburst beforehand. The Board finds that a rating in excess of 70 percent is not warranted. The Board finds the June 2014 and December 2016 VA examination are probative evidence. The examiners characterized the Veteran's occupational and social impairment as resulting occupational and social impairment with reduced reliability and productivity. The examiner provided specific detailed symptoms that do not meet or more closely approximate the criteria for at the criteria for a 100 percent rating. There is no evidence that the Veteran's PTSD results in total occupational and social impairment and there was no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself 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, or his own name. The Veteran and his spouse are competent to report symptoms because this requires only personal knowledge as it comes to him through their senses. Layno v. Brown, 6 Vet. App. 465 (1994). They are not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him or his medical records during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran and his spouse's subjective observations. In summary, the preponderance of the evidence is against the claim for an initial rating in excess of 70 for service-connected PTSD. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.