Citation Nr: 21005659 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-35 010 DATE: February 2, 2021 ORDER A 70 percent rating (but no higher) for service-connected posttraumatic stress disorder (PTSD) is granted from November 30, 2016. FINDINGS OF FACT 1. Prior to November 30, 2016, the preponderance of the evidence is against finding the Veteran’s PTSD caused symptoms of a frequency, severity, or duration consistent with occupational and social impairment with deficiencies in most areas of functioning. 2. From November 30, 2016, the evidence is at least in relative equipoise as to whether the Veteran’s PTSD began to cause more severe symptoms or impairment such that, by the time of an August 2019 VA examination, the Veteran’s symptoms or impairment reasonably resembled the frequency, severity, or duration of those contemplated by the higher 70 percent rating criteria. 3. Nothing of record shows or alleges that the Veteran’s service-connected PTSD causes symptoms or impairment of a frequency, severity, or duration consistent with total occupational and social impairment as contemplated by the higher 100 percent rating criteria. CONCLUSION OF LAW The criteria are met for a 70 percent rating (but no higher) for service-connected PTSD from November 30, 2016. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.130 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from July 1965 to April 1977 and July 1981 to July 1985. This appeal is before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision appealed in a timely February 2016 notice of disagreement (NOD) and perfected by a timely June 2017 substantive appeal in response to May 2017 statement of the case (SOC). The Board previously remanded this matter in March 2019. VA has obtained the Veteran’s service treatment records (STRs) and pertinent post-service treatment records and the Veteran has been examined on several occasions in conjunction with this appeal. Together, the reports of those examinations describe the disability on appeal in sufficient detail to allow for application of the pertinent rating criteria. Although the Board’s prior decision determined that the April 2015 VA examination report of record was “less full and complete” than the report upon which his current rating was based because the examiner declined to provide a full symptom report and did not sufficiently explain why, it did not find the examination report itself wholly inadequate and the remaining portions include detailed and pertinent observations regarding his overall functioning (described in further detail below) that are severable from the inadequate symptoms report and certainly probative here. Thus, the Board will read the examination report as a whole, as required by law, and will disregard the portions that lower the probative value. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Crucially, the Veteran has had ample opportunity to respond since the Board’s last remand and has not alleged any further notice or development inadequacies. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board has considered whether the matter of a total disability rating based on individual unemployability (TDIU) has been raised by the record during the pendency of this increased rating appeal, but given the Veteran is already receiving a 100 percent combined schedular rating and special monthly compensation (SMC) under 38 U.S.C. § 1114(s) since well before the period on appeal, the issue of a TDIU rating is moot, because the only potential benefits are already in effect. 1. A 70 percent rating (but no higher) for service-connected posttraumatic stress disorder (PTSD) is granted from November 30, 2016 Legal Criteria Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In a claim for increase the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating the level of disability of an increased rating claim begins one year before the claim was filed. The present appeal began when VA scheduled the Veteran for a routine psychiatric evaluation and, therefore, the Board will consider the appeal period as beginning from one year before that examination request—March 17, 2014. The Veteran’s PTSD is rated according to the General Rating Formula for Mental Disorders. Under the relevant rating criteria, a 100 percent 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. A 70 percent 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 worklike setting); inability to establish and maintain effective relationships. The symptoms listed in VA’s general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board may not differentiate between PTSD symptoms and the symptoms of any nonservice-connected mental disorder unless there is clinical evidence clearly showing which symptoms are caused by which condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). In addition, the evaluation must be 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. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). Facts Notably, throughout the appeal period, there are no records of psychiatric treatment, the Veteran has consistently denied receiving any such treatment, and the limited pertinent notations of record largely show normal psychiatric functioning with negative depression screens, “fair” judgment and insight, and normal cognitive status reports in home health care records despite the continued presence of flashbacks, intrusive memories, sleep impairment, and other PTSD symptoms. Given that, the primary source of information describing the Veteran’s psychiatric functioning in detail are the VA examination reports of record. While notations of irritable behavior and angry outbursts, typically expressed as verbal or physical aggression to people or objects, with little to no provocation on June 2014 and April 2015 VA examination certainly resemble the degree of mood deficiency contemplated by the 70 percent rating criteria (e.g., unprovoked irritability with periods of violence), there is no indication of any other psychiatric impairment commensurate with the level of disability described therein. Specifically, he reported positive family relationships during both examinations and, while the June 2014 examiner noted mild memory loss, formal cognitive testing showed memory was still within normal limits and both the June 2014 and April 2015 examiners indicated no notable cognitive impairment overall. Similarly, both examination reports show he maintained a ham radio hobby that he enjoyed and that his mental status was largely unremarkable. Notably, the Veteran himself said on June 2014 examination that he had adequate daily functioning in all areas except interpersonal relationships, which he described as only mildly impaired. Although the June 2014 examination report does note “severe” work capacity impairment, the Veteran self-attributed this to physical, rather than psychiatric, limitations. There was no evidence of any unusual ideation, delusions, or other formal thought disorder in either report. Consistent with their respective findings, both examiners opined that the Veteran’s psychiatric impairment was due to mild or transient symptoms decreasing work efficiency only during periods of significant stress, far below the “deficiencies in most areas of functioning” contemplated by the 70 percent rating criteria. As noted above, clinical records are silent for notable psychiatric impairment and largely show normal functioning. However, November 30, 2016 and May 1, 2017 home health care notes show “severe psychiatric symptomatology that interferes with ability to function and maintain independence in the community” in the preceding weeks due to prolonged PTSD and anxiety, there is no further detail provided as to the specific symptoms involved or their severity, frequency, or duration. These represent the first clinical notations of severe psychiatric impairment. Although a May 16, 2017 psychiatric review shortly thereafter showed fair insight and judgment, proper orientation, and alert mood with no indication of psychiatric distress or abnormality, in June 2017, the Veteran gave what appears to be the first affirmative PTSD complaints in a clinical setting during the appeal period (continued flashbacks, nightmares, and night sweats). In the following year, records were again silent for any notable psychiatric complaints, but in December 2018, he reported getting “down” on occasion despite trying not to and maintaining good family support. Records in the following year continued to show unremarkable psychiatric or mental status. From there, an August 14, 2019 VA examination report shows that, despite many things remaining consistent with prior findings (e.g., stable family relationships, participation in social activities and hobbies, continued lack of treatment or medication), the Veteran had developed difficulty adapting to stressful circumstances, including work or a work-like setting in addition to continuing issues with unprovoked irritability manifesting as aggression towards people or objects. Moreover, an attached opinion specifically notes psychiatric impairment of concentration and focus, "significant difficulty functioning around other people...as a team member," discomfort around others, and such significant sleep disruption "that [he] is usually fatigued...making concentration and focus on work assignments difficult." Analysis Based on its review of the entire record (with key facts described above), the Board finds that the preponderance of the evidence is against awarding a higher 70 percent rating prior to November 30, 2016. However, a record from that date is the first demonstrable evidence of more serious impairment that, by the time of an August 2019 VA examination, was described as involving the kind of multi-faceted, extensive functional deficiency contemplated by the 70 percent rating criteria. First, the Board finds that the evidence reasonably shows that the August 2019 VA examination report paints a disability picture characterized by deficiencies in most areas of functioning specifically contemplated by the 70 percent rating criteria—mood (e.g., continuing unprovoked irritability issues), thinking (e.g., cognitive deficits attributed to his intrusive memories, sleep impairment, and other psychiatric symptoms), and work (difficulty adapting to stressful environments). Moreover, the evidence also reasonably shows that this worsening was first evidence in the November 30, 2016 record noting “severe psychiatric symptomatology that interferes with his ability to function and maintain independence” (emphasis added), particularly considering interference with routine activities or independent functioning is specifically contemplated as the salient functional impact associated with the exemplar symptoms in the 70 percent rating criteria (e.g., obsessional rituals which interfere with routine activities, panic or depression affecting the ability to function independently). Consequently, the Board finds the evidence is at least in relative equipoise as to whether a higher 70 percent rating is warranted from November 30, 2016 and, resolving any reasonable doubt in his favor, grants the appeal to this extent. What remains for consideration is whether the evidence shows similar worsening prior to that date or even more severe symptoms warranting a higher 100 percent rating at any time on appeal. However, there is simply no evidence that either condition is met to allow for additional awards of higher ratings in this appeal. Even if (for the sake of argument) the Board were to accept all the Veteran’s requested amendments to the April 2015 VA examination report—that he only volunteered for ham radio testing once a month if needed and that his appetite was “fair to good,” rather than “good” as originally described in that report—there is no indication anywhere prior to November 2016 of extensive psychiatric impairments affecting several areas of functioning (as contemplated by the 70 percent rating criteria) or interfering with routine or independent functioning as indicated in the November 2016 record. Before November 2016, the evidence suggests, at most, deficiencies in two areas of functioning—mood and work (e.g., due to symptoms like irritability and disturbances of motivation and mood). There is also no evidence or allegation that the Veteran had anything other than grossly normal judgment or family relationships prior to November 2016. While the Board acknowledges that the Veteran was noted to have some memory loss prior to November 30, 2016, it was described as mild and, even then, still “within normal limits.” Even to the extent that it could be considered a deficiency of thinking, the Board notes that mild memory loss is of a severity associated with a lower 30 percent rating. Indeed, even the currently assigned 50 percent rating requires impairment of both long and short-term memory (e.g., retention of only highly learned material, forgetting to complete tasks). Therefore, even assuming (for the sake of argument) that this memory loss were clinically significant (contrary to the June 2014 examiner’s findings), it would not fall within the range of severity consistent with a higher 70 percent rating. Finally, the Board finds no evidence or allegation that the Veteran’s psychiatric symptoms caused the sort of gross, persistent disability that wholly precludes normal functioning or distorts reality in the manner contemplated by the 100 percent schedular rating criteria at any time on appeal. In so finding, the Board does not suggest that the Veteran’s troubles are not burdensome but can find nothing to suggest his symptoms or impairment have resembled the totally and disabling picture in the 100 percent criteria. Indeed, records are entirely silent for any perceptual disturbance, delusion, unusual ideation, or formal thought disorder and, in fact, have consistently noted no signs of such symptoms. (Continued on the next page)   Accordingly, the Board finds the preponderance of the evidence is against awarding a 70 percent rating prior to November 30, 2016 or 100 percent rating at any time. Therefore, the benefit of the doubt rule does not apply and Board must deny the appeal to the extent that it seeks a 100 percent rating. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yuan, 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.