Citation Nr: 21067443 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 14-23 669 DATE: November 4, 2021 REMANDED The claim for a higher rating for posttraumatic stress disorder (PTSD), rated 30 percent disabling, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1966 to May 1969. The Department of Veterans Affairs (VA) is grateful for his service. The appeal originally arose from a June 2013 rating decision. The Board of Veterans' Appeals (Board) previously remanded the appealed claim for additional development in August 2018. Following such development, the case was returned to the Board, and the Board by a December 2019 decision denied the claim. The Veteran timely appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court), and the Veteran and the Secretary of VA then filed a Joint Motion for Remand (Joint Motion) which requested that the Board's decision be vacated and that the case be remanded for actions consistent with the Joint Motion. By a December 2020 Order, the Court approved the Joint Motion. The claim for a higher rating for PTSD, rated 30 percent disabling, is remanded. VA evaluates PTSD under the General Rating Formula for Mental Disorders provided in 38 C.F.R. § 4.130, Diagnostic Code 9411. As the Board noted in the now-vacated December 2019 decision, through his procedural appeal documents and statements, the Veteran contended that a higher rating in excess of 30 percent was warranted for PTSD based on his perceived symptoms and their impacts, with reported symptoms including recurrent depressed mood, sadness, panic attacks, social detachment, nightmares, and memory problems. Also as the Board then noted, a May 2013 VA examination report reflected that examiner's conclusion that the Veteran had occupational and social impairment due to mild and transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. This characterization of the level of impairment due to PTSD corresponds to a 10 percent rating. The examiner noted that while the Veteran reported he missed work "one day per week due to low motivation" and that he was socially withdrawn at times, the examiner attributed these symptoms to his non-service-connected alcohol abuse disorder which exacerbated his mood and sleep. The examiner noted that the Veteran did not demonstrate obvious problems with attention, concentration, expression, comprehension, or memory. His speech was fluent, and his though processes were focused. The Veteran's mood appeared to be euthymic. Nevertheless, the examiner acknowledged symptoms such as difficulty staying or falling asleep, exaggerated startle response, depressed mood, and disturbances with motivation and mood, which are symptoms that more nearly approximate the criteria required for a 30 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. In a July 2013 notice of disagreement (NOD), the Veteran indicated he was unable to interact with others, that he experienced panic attacks, and that he had memory issues. During his August 2016 Board hearing, the Veteran testified that he was distant from his family and was experiencing social impairment, isolation, nightmares. He then added that he had been diagnosed with psychosis. Based on these statements indicating some increase in severity of psychiatric disability, the Board remanded the Veteran's claim for a VA examination to assess his current disability. At his May 2019 VA PTSD examination, the VA examiner noted that since the last VA examination in May 2013 the Veteran had retired and had ended a 20-year romantic relationship. In that regard, the examiner assessed that the Veteran "has felt sadder about not having the relationship, but he also feels relieved that he doesn't have to go out and socialize." The examiner noted that the Veteran maintains a relationship with his family, including his sons, grandchildren, and his sisters whom he helps and takes care of as needed. The Veteran's mood was euthymic during the examination, with normal and full affect. His thought processes were clear, coherent, goal oriented, without evidence of formal thought disorder or psychosis. The examiner assessed that the Veteran has a mental condition that has been formally diagnosed, but that symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. This characterization of the level of impairment of the Veteran's psychiatric disability corresponds to a non-compensable rating under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. At the May 2019 examination, the Veteran reported difficulty sleeping, low mood, and decreased interest. The examiner partially attributed these symptoms "to the breakup with his girlfriend," and added that these symptoms were not significantly worse or different symptoms than those found at his last examination in July 2013. The May 2019 examiner concluded that there was no worsening of symptoms or decrease in functioning since the Veteran's last exam due to PTSD. The parties to Joint Motion found that the Board's reasons and bases for its denial of the claim in December 2019 was deficient because while the Board addressed the May 2019 VA examination for PTSD, the Board failed to address the Veteran's report during the examination that "2 years ago after his girlfriend left he was depressed and suicidal and he called the suicide hotline and they put him on hold and he prayed and those thoughts went away." The parties to the Joint Motion vacated the Board's December 2020 decision based solely on the Board's failure to explicitly address the Veteran's self-report at the May 2019 examination of this history of a self-limiting suicidal ideation incident two years earlier. The parties thus afforded the Veteran and his representative the opportunity to present additional evidence in furtherance of the claim. The representative submitted into the record in October 2021 a September 2021 private psychological evaluation in which the psychologist attributes numerous identified and self-reported difficulties to PTSD, in contrast to the conclusions of the VA examiners finding few attributable symptoms and little attributable impairment. The psychologist notably also fails to address the contribution of alcohol abuse disorder to the Veteran's functioning and circumstances, in contrast to the May 2013 examiner's assessment. The private psychologist addresses the Veteran's numerous self-reported symptoms and elaborates upon them to conclude that the Veteran's "service-connected PTSD manifests to a degree that is consistent with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: 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; difficulty in adapting to stressful circumstances (including work or a work like setting); an inability to establish and maintain effective relationships; and obsessional rituals which interfere with functioning, as evidenced by his hypervigilance (i.e., pre-bedtime routines) that interfere with his ability to sleep." This conclusion or characterization by the private psychologist substantially quotes the criteria for a 70 percent rating under the General Rating Formula for Mental Disorders. The private hired psychologist thus seeks to place the Veteran's PTSD squarely within the realm of psychiatric disabilities warranting a 70 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. The private psychologist's assessment is markedly different in its findings of PTSD symptoms and its assessment of impacts on functioning from the findings and assessments of the May 2013 and May 2019 VA examiners, with no explanation presented for the vast discrepancy. An adequate examination must support its conclusion with an analysis that can be weighed against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Absent any explanation of these differences between it and the VA examinations, the private examination cannot be adequate for adjudicative purposes. A new examination is accordingly warranted, including careful in-person examination, psychological testing, and validity testing, in furtherance of efforts to explain the vast discrepancy between the VA examinations and the private examination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matter is REMANDED for the following actions: 1. Obtain any VA treatment records and any pertinent private treatment records not yet associated with the claims file. The Veteran's authorization or assistance should be requested, as appropriate. All requests, responses, and records received should be documented in the claims file. If any records cannot be obtained, the Veteran should be appropriately notified. 2. Thereafter, obtain a new VA examination by an examiner qualified to carefully evaluate the nature and severity of the Veteran's service-connected PTSD by use of records review, examination interview, psychological testing, and validity testing. The examiner should be advised that this examination is necessary because prior VA examinations in May 2013 and May 2019 were substantially consistent in their findings and conclusions and appeared to evaluate the nature and severity of the Veteran's PTSD in a satisfactory manner, yet a submitted September 2021 private psychologist's evaluation presents an assessment of a markedly more severe PTSD and a myriad of symptoms attributed to the Veteran's PTSD which were either not found by the VA examiners or were attributed to other circumstances or conditions. The examiner must attempt to provide an explanation for this vast discrepancy between the May 2013 and May 2019 VA PTSD examinations and the September 2021 private psychologist's evaluation, since the VA assessments and the private assessment, to the extent it contradicts the VA assessments, cannot both be correct. The examiner's explanation should thus include an assessment of how the VA examinations' findings and conclusions or the private examination's findings and conclusions are in error. The examiner must provide a thorough evaluation of the Veteran's PTSD and its impact on functioning, including in particular work or work-like functioning, based on review of past treatment and examination records, examination interview and testing, and consideration of the Veteran's self-reported history. This should include an evaluation of current disability and impact on functioning, and a retrospective evaluation for the entire appeal period from July 2011 to the present. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. However, competence and credibility are not the same thing. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. To aid in evaluating the Veteran's PTSD and resolving the discrepancies between the VA and private evaluations, psychological testing and validity testing must be conducted, relevant results of these tests must be reported in detail, and their relevance to the nature and severity of the Veteran's PSTD must be explained. The examiner must provide a complete explanation for the examiner's findings and conclusions. 3. Thereafter, readjudicate the appealed claim. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.