Citation Nr: 21075434 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-06 129 DATE: December 20, 2021 ORDER A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran's PTSD has been manifested by symptoms of the type and extent, frequency, and/or severity (as appropriate) that are indicative of 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); and, inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1969 to July 1972. On appeal is a June 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that increased the rating for the Veteran's service-connected PTSD to 50 percent effective January 27, 2011 the date of the Veteran's claim for an increased rating. A Board hearing was held in this matter in December 2019, and a transcript of the proceedings is associated with the claims file. After the Board hearing, in September 2020, the Board remanded for additional development, to include obtaining a new VA examination. After the requested development was completed, the RO granted an increased rating of 70 percent effective January 27, 2011 the date of the Veteran's claim for an increased rating. As the disability rating assigned does not represent a total grant of benefits sought on appeal, the claim for an increase remains before the Board. AB v Brown, 6 Vet. App. 35, 39 (1993). The Board also notes that in a July 2021 rating decision, the Veteran was granted a total disability rating for individual unemployability (TDIU) effective September 18, 2020. The case has now been returned to the Board for further adjudication. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. Also of record are VA examinations conducted in May 2011 and April 2021. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). 1. Entitlement to a rating in excess of 70 percent for PTSD. PTSD is rated pursuant to the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411, under the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 70 percent rating is assigned for 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 assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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. The Veteran underwent a VA examination for PTSD in May 2011. The examiner noted a diagnosis of PTSD; the Veteran reported he takes prescribed medication. In terms of family/social history, the examiner noted the Veteran reported he is divorced with two adult children from that marriage, and he is currently living with his second wife of 13 years. He stated their house is in foreclosure so they will be moving to a rental house. He stated he has few friends and has limited social activity. In terms of his occupational/educational history, the Veteran reported he is currently employed, but his anger and irritability cause some conflict with co-workers and supervisors. He reported feeling stressed at work and concerned about his ability to keep working. Veteran stated he will miss work about once a month due to feelings of depression and anxiety. The examiner noted the Veteran reported, "People at work know I am pretty volatile." "I am always on edge." The examiner noted the Veteran had the following symptoms during the examination: hesitant speech; irritable, guarded attitude toward examiner; flat affect; and, agitated mood. His attention was intact; he was oriented to person, place, and time; he had no delusions; no suicidal or homicidal thoughts; he was able to maintain minimum personal hygiene; and his insight was such that he understood he has a problem. The examiner stated the Veteran's PTSD symptoms result in occupational and social impairment with reduced reliability and productivity. The Veteran underwent another VA examination in April 2021. The examiner diagnosed the Veteran with PTSD. In terms of family/social history, the Veteran reported he resides with his wife, and overall, things are good. He has 2 children from a prior marriage but noted he has not seen his youngest son in 6-7 years. He stated the divorce from his first wife led to difficulties with the children while they were younger. The Veteran noted he really does not have any hobbies or social life or contact with others. He noted he spends time reading, in order to "get away", noting it aids him to escape from others, the world, etc.. In terms of his occupational history, the Veteran stated he worked for the Oregon DOT [Department of Transportation] for 12 years, as a senior engineering specialist. He left this position in 2014, and the examiner noted the Veteran reported he was taking "300mg of Zoloft to hold my shit together". He noted he was in a work environment in which he was constantly under stress, and it got to the extreme in the Fall of 2013, when he "slapped him with the truck door" and threatened physical abuse. He noted that was a point in which he recognized he could not continue in this environment. He noted he had also been reprimanded for yelling at someone else on the work site. He later worked as an estimator for a construction company until Fall 2020 when he noted he became increasingly frustrated with a lack of agreement in their providing for his vehicle maintenance. He got fed up and resigned. He noted after working 40 years in heavy construction, "I just couldn't put up with the bullshit anymore." For VA rating purposes, the Veteran's symptoms include: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; 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; impaired judgment; 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 work-like setting; inability to establish and maintain effective relationships; and, impaired impulse control, such as unprovoked irritability with periods of violence. The examiner made the following behavioral observations during the examination: The Veteran was oriented to person, place, time, and situation. His thought processes were logical, coherent and goal directed with no evidence of hallucinations or delusions. His speech was clear and of normal rate, rhythm, and volume. His mood was depressed, anxious, irritable with restricted affect. His attention and concentration are fair. His short-term memory is fair and long term intact. His insight is poor, and judgement is poor. His motivation and energy are poor. His intellectual ability is estimated to be high average. He denies suicidal or homicidal ideation. The examiner stated the Veteran's PTSD symptoms result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran's treatment records from the St. Louis VAMC are associated with his claims file. In summary, these records reflect the Veteran's continuous treatment for PTSD over the years. The Veteran's private treatment records from Sky Lakes Medical Center are associated with his claims file. In summary, these records reflect the Veteran's continuous treatment for PTSD over the years. A June 2019 record reflects the Veteran was seen for follow up on his medications. He indicated he was trying to cut back to 50 mg Zoloft, and it did not do well. He was more volatile and angry, and seemed to do worse over the week. He went back to 100 mg dose and seems to be doing better. Lay evidence is also associated with the Veteran's claim file. At the December 2019 Board hearing in this matter, the Veteran stated he was married with 2 sons from a previous marriage, and he does not have many friends. He stated there were occasions in his life where he probably came really close to hurting people. And one happened not too many years ago, when he got shoved in a bar and a friend of his took the guy down and the Veteran came to close to stomping on the guy's throat when he was on the floor. He recalled he wanted to hurt him really bad. The Veteran also stated that he has always told his son that if he were to pop up with some disease that he has always kidded both of his kids to put him in his canoe on the Deschutes River stating, "People, you know, they get to the point where they can't take the pain or whatever and a tendency to walk out in front of a brush and not come back." In a lay statement from the Veteran's spouse, received by the VA in May 2021, the spouse stated when they first married, she knew he had severe issues with PTSD, but while she expected this would improve with time, it has in fact worsened. She stated the Veteran "hides inside himself" and lives life singularly and withdrawn from his surroundings. It is impossible for him to maintain long lasting relationships with others because he is incapable of sustaining any amount of vulnerability. Based on the above, the Board finds that the 70 percent rating assigned is the most appropriate ratings for the Veteran's PTSD. The Board finds that the currently assigned rating of 70 percent is appropriate. This is so because the record does not reflect a time when the Veteran exhibited symptoms of the type, extent, frequency, or severity indicative of those identified as warranting a 100 percent rating, such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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. Instead, the Veteran has consistently maintained his marriage and although there appears to have been a decline in his mental health, the award of the 70 percent rating for the entire period on appeal contemplated those additional symptoms, such as impaired impulse control, which were found to be present by the April 2021 VA examiner. In fact, that examiner determined that the Veteran's PTSD symptomatology caused occupational and social impairment with deficiencies in most areas. This level of symptomatology corresponds to the 70 percent rating that is currently assigned. The Board is aware that the presence or absence of specific symptoms, which correspond to a particular rating, is not dispositive. 38 C.F.R. § 4.130; Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as noted above, the weight of the evidence does not show that the Veteran's symptomatology is more severe than considered by the 70 percent disability rating assigned. The Board has also considered the lay statements from the Veteran and his spouse, including the Veteran's testimony at the Board hearing in this matter in December 2019. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, such an opinion falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To the extent that the Veteran contends that his PTSD is more severe than evaluated, while he is competent to describe his symptoms, he is not competent to report that his PTSD is of sufficient severity to warrant a certain percent evaluation under VA's criteria for rating PTSD, as such an opinion requires medical expertise which he does not possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372. As such, the Board concludes that the preponderance of the evidence is against the claim for a disability rating in excess of 70 percent. 38 U.S.C. § 5107(b). The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jiggetts 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.