Citation Nr: 21076299 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-08 695 DATE: December 23, 2021 ORDER A disability rating in excess of 70 percent from March 11, 2015, for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The objective medical evidence does not show that the severity, frequency and duration of the Veteran's PTSD more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1997 to February 2006. By way of history, the Veteran submitted a claim for service connection for PTSD in February 2006. The claim was granted in June 2006, a 30 percent disability rating was assigned, effective February 9, 2006. Thereafter, the Veteran filed a claim for an increased rating for his service-connected PTSD in March 2015. The claim was granted in June 2015, a 50 percent disability rating was assigned, effective March 11, 2015. The Veteran disagreed with the assigned disability rating in a June 2016 notice of disagreement (NOD). This claim was subsequently perfected, and the Board of Veterans' Appeals (Board) remanded this matter for further evidentiary development in September 2019. A December 2019 rating decision granted an increase to 70 percent for the Veteran's service-connected PTSD, effective November 27, 2019. The Board remanded this matter again in July 2021. Thereafter, an August 2021 rating decision granted a higher 70 percent rating for PTSD, effective March 11, 2015. This rating does not constitute a full grant of the benefit sought and the claim for a higher rating remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board also notes that additional VA treatment records were received after the August 2021 supplemental statement of the case (SSOC). Although the Veteran has not provided a waiver of the AOJ's initial consideration of this evidence, these additional records provide information that is either duplicative of the prior evidence of record or has no material effect on the outcome of the Veteran's increased rating claim for PTSD. Entitlement to an increased disability rating for PTSD. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the appeal stems from a request for higher rating following the award of service connection, evaluation of the medical evidence pertinent to the original claim, and consideration of the appropriateness of staged rating (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). PTSD is evaluated under the General Rating Formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent disability rating is warranted 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted 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. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating, then that rating will be assigned. Mauerhan, 16 Vet. App. at 443. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the veteran's capacity for adjustment during periods of remission. 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. 38 C.F.R. § 4.126 (a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). It is necessary to evaluate a disability from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. The Veteran is seeking entitlement to a rating in excess of 70 percent for PTSD from March 11, 2015. Turning to the record, the Veteran was afforded a VA examination in May 2015. The May 2015 examiner noted the Veteran's PTSD symptoms as hypervigilance, exaggerated startle response, depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, hypervigilance, suspiciousness, strong irritability, and recurring intrusive thoughts/memories about traumas. The examiner noted that the Veteran's PTSD is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although general functioning satisfactorily, with normal routine behavior, self-care and conversation. At the May 2015 examination, the Veteran reported he was employed with the US postal service since 2006 and he was enrolled in a university, with only 7 classes away from obtaining his Bachelor of Arts degree. The Veteran reported taking medications that helped his PTSD, but he was weaning himself off the medication due to not wanting to be on medications to feel better. The Veteran reported an incident at work. He denied a history of or current suicidal/homicidal ideations, engaging in self-harming behaviors, or being admitted to inpatient psychiatric hospitalizations. Behavioral observations were noted, the Veteran was alert and cooperative based on the interview. The examiner marked that the Veteran was employed or not claiming functional impairment. The Veteran was afforded another VA examination in November 2016. The November 2016 examiner noted the Veteran's PTSD symptoms as irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, anxiety, suspiciousness, difficulty in adapting to stressful circumstances, and difficulty in establishing and maintaining effective work and social relationships. The examiner described the Veteran's PTSD as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran reported no suicidal or homicidal intent. Behavioral observations were noted, the Veteran was well-oriented, cooperative, neutral mood and affect, speech with regular rate and rhythm, thoughts linear and goal-directed, no psychotic thought processes, memory and concentration intact, and insight and judgment intact. The examiner noted that the Veteran was currently employed and attending school. The Veteran's wife submitted a lay statement in August 2017 in which she states that the Veteran has flashbacks, panic attacks, nightmares, and daydreams about his combat experiences, and that these sometimes involve "hearing things." See August 2017 Spousal Statement. She also contends that she no longer works as the Veteran calls her numerous times each day to calm himself down and she frequently has to pick him up from work as his anxiety prevents him from driving. Id. Lastly, she notes a history of domestic violence in both their marriage and the Veteran's previous marriage and asserts that she believes the Veteran has an "internal rage." Id. As previously mentioned, the Board remanded this matter in September 2019 to afford the Veteran a new VA examination to address the August 2017 Spousal Statement and because the Veteran's representative submitted an August 2019 Appellate Brief suggesting a material change in the Veteran's PTSD. The Board included a directive that the examiner should state whether the May 2004 improvised explosive device (IED) incident is relevant to the current severity of the Veteran's PTSD. Pursuant to the September 2019 Board remand, the Veteran was afforded a VA examination in November 2019. The November 2019 examiner noted that the Veteran reported he was not sad most of the time, able to enjoy self, no suicidal intent, not clinically depressed. The examiner listed the Veteran's PTSD symptoms as irritable behavior and angry outbursts, problems with concentration, exaggerated startle response, nightmares, anxiety, suspiciousness, flashbacks, intrusive distressing memories, intense reactions to reminders of past traumas, avoidance symptoms, hypervigilance, loss of interests or pleasures, persistent negative emotional states, feelings of detachment from others, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impairment of short and long term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. The examiner described the Veteran's PTSD as occupational and social impairment with reduced reliability and productivity. At the November 2019 examination, the Veteran reported that he was still employed and had worked in that job for 13 years. He also reported that his PTSD affects his reliability at work as he called in sick 45 days the previous year and already 35 days by the November 2019 examination; and he got into shouting matches with management. He also reported it taking him 15 years to earn his BA because he had to drop out of a few classes. Behavioral observations were described as appropriate general appearance, thought process logical and goal-directed, affect congruent and appropriate to the conversation, intelligence average from conversation, speech rate normal. Psychomotor speed seems normal, oriented, has a problem with anger although he was logically controlling it, he was getting angry with the examiner but was able to control his anger. The examiner noted that the Veteran's PTSD is best summarized as reduced reliability and productivity because he is still able to work full-time and other indicators, but he is also having significant difficulty with the requirements of his job due to his service-connected disabilities. In the September 2019 and July 2021 Board remands, the May 2015, November 2016, and November 2019 VA examination report were determined to be incomplete or somewhat inadequate to base a decision and so the Board will not rely on these examinations when making the present decision. However, these examinations provide the Board with a notion of the Veteran's PTSD symptoms as reported by him throughout the course of this appeal. Specifically, the Veteran reported difficulties with performing occupational tasks and having to call out of work due to his PTSD. However, it appears he was able to maintain employment with one company for years while also pursuing higher education. The record shows that the Veteran applied for and received Vocational Rehabilitation and Employment (VR&E) program benefits due to all of his service-connected disabilities. The benefit began in December 2015 to provide him assistance obtaining certificates to enhance his bachelor's degree and then to subsequently provide him with employment assistance. See December 2015 Rehabilitation Plan. He was in receipt of VR&E benefits, which were terminated in March 2019 because he completed the objectives outlined in his rehabilitation plan and exhausted employment services timeframe of 18 months. See March 2019 VR&E Correspondence. The Veteran applied for and received VR&E program benefits again in May 2020. He was approved, in part, because he met the criteria to determine that it was reasonably feasible for the Veteran to pursue a vocational goal. In June 2020, the VA proposed to close the Veteran's VR&E case because of a determination that the Veteran's circumstances had improved as he completed a graduate degree and received employment services. In July 2020, the VA successfully closed the Veteran's VR&E case because he was able to complete the training or other objectives outlined in his rehabilitation plan and received maximum rehabilitation benefits under the program. Specifically, the Veteran was found to be employed in the field that he was employed in prior to VR&E services. It was noted that the Veteran called in June 2020 to confirm that he was uninterested in employment services as he elected to pursue higher education. See July 2020 Discontinuance Closure Statement. As previously mentioned, the Board remanded this matter again in July 2021 to afford the Veteran a VA examination that specifically addressed the August 2017 spousal statement and to state whether the Veteran's May 2004 IED incident was relevant to his PTSD. Pursuant to the July 2021 Board remand, the Veteran was afforded a VA examination in August 2021. The August 2021 examiner listed the Veteran's PTSD symptoms as nightmares, anxiety, suspiciousness, panic attacks that occur weekly or less often, flashbacks, intrusive distressing memories, intense reactions to reminders of past traumas, avoidance symptoms, irritability, hypervigilance, concentration problems, insomnia, loss of interests or pleasures, persistent negative emotional states, feelings of detachment from others, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. The examiner summarized the Veteran's PTSD as occupational and social impairment with deficiencies in most areas. At the August 2021 examination, the Veteran reported that he did not have friends and avoided crowds. He reported that he was currently working as a mail carrier and had been for 14 years and that his PTSD affected him because he was almost fired a couple of times, he also reported that he calls in sick about 50 days out of the year, had a few people fired because of their dishonesty, and almost got into a few fights, none of which he initiated. Behavioral observations were described as appropriate general appearance, thought process tangential, affect to start with but more relaxed as the interview went on, intelligence average from conversation, speech rate normal, psychomotor speed seemed normal, and oriented. The August 2021 VA examiner noted that he reviewed the Veteran's claims file, including the August 2017 spouse statement and it was clear his PTSD affected him greatly and it was clear that the May 2004 IED incident is relevant to the current severity of the Veteran's PTSD as it caused his PTSD and that the PTSD continues, it is the reason for his continuing anger. The examiner noted that the Veteran's suicide risk level is not at elevated acute risk. Based on the foregoing, the Board finds that the preponderance of the evidence is against a rating higher than 70 percent for PTSD. While the Veteran contends that he frequently calls in sick to work due to his PTSD, he has been able to maintain employment in the same position since his separation from service and has pursued higher education during that time as well. As noted above, a 100 percent rating for PTSD requires total occupational and social impairment. This has not been shown. Moreover, the evidence of record does not show that the Veteran suffers psychiatric symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment that would otherwise be equivalent to a 100 percent disability rating. Mauerhan, 16 Vet. App. at 443. The Veteran notes that he has gotten into fights at work, but also added that he did not start any of the fights. The record reveals the Veteran has been able to complete several certificates to enhance his employability. He appears to have an appropriate ability to communicate and despite his wife's reports of hearing things, there is no evidence that this symptom is persistent and there is otherwise no evidence of persistent delusions of hallucinations. He also has consistently denied any suicidal or homicidal intent or ideations. In her August 2017 spousal statement, the Veteran's wife noted that she often has to pick him up from work, however, it appears he is able to perform most other activities of daily living on his own, to include maintenance of minimal personal hygiene. Accordingly, the criteria for a 100 percent rating are not met and the claim for a rating in excess of 70 percent for PTSD is denied. (Continued on the next page) The Board also reviewed and carefully considered the Veteran's lay statements asserting that the severity of his service-connected PTSD warrants a higher disability rating. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board emphasizes that the Veteran is not competent to interpret accurately clinical findings pertaining to his PTSD symptoms as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). PAUL E. METZNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.