Citation Nr: 21006741 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-23 338 DATE: February 5, 2021 ORDER An initial disability rating in excess of 50 percent for PTSD prior to September 23, 2019 and in excess of 70 percent from that date onwards is denied. FINDINGS OF FACT 1. Prior to September 23, 2019, the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximate occupational and social impairment with reduced reliability and productivity. 2. From September 23, 2019 onwards, the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 50 percent for PTSD prior to September 23, 2019 have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating in excess of 70 percent from September 23, 2019 onwards have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from February 1980 to May 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this claim in March 2018 and August 2020 for evidentiary development. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). An increased rating for PTSD Legal Criteria PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation 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. Id. A 100 percent evaluation 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, 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. When evaluating the level of disability 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. The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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). Factual Background & Analysis On appeal is whether the Veteran’s service-connected PTSD warrants an initial disability rating in excess of 50 percent prior to September 23, 2019 and a disability rating in excess of 70 percent from September 23, 2019 onwards. In a January 2013 statement the Veteran communicated that he experienced behavior changes including episodes of depression, panic attacks or anxiety without an identifiable cause; substance abuse such as alcohol or drugs; increased disregard for authority; obsessive behavior such as overeating or undereating; unexplained economic or social behavior changes and the breakup of a primary relationship. February 2013 statements from the Veteran’s brother and sister note behavioral changes following separation from service such as being easily agitated and quick to seek out physical confrontation. These statements also note that the Veteran became very dishonest and started using drugs and alcohol daily. On January 2014 VA psychological examination symptoms of depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships, impaired impulse control, such as unprovoked irritability periods of violence were documented. The Veteran reported struggling with drug and alcohol abuse following service. Private therapy notes spanning from 2011 to 2013 from the Center for Psychological Services and Development document symptoms anxiety, depression, “wanting to stay in bed all day,” rumination and lack of motivation as triggers for thoughts of using drugs and alcohol. VAMC psychological treatment notes from July 2014 to September 2019 document intermittent symptoms of anxiety, depression, mood swings, racing thoughts and paranoia. Suicide risk screenings during this period were negative for ideation, plan or intent to harm himself. On September 2019 VA psychological examination the Veteran reported being sober since 2016. He stated that he is working as a cook for the VA and has been divorced for 3 years. He further relayed that he is living with his girlfriend and is involved with treatment at VA both at an individual level and with anger management courses. Symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, 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 and an inability to establish and maintain effective relationships. With respect to the occupational impact of the Veteran’s PTSD, the examiner commented that sleep disturbance adversely impacts his irritability, concentration and ability to focus. He is hypervigilant which increases his distractibility. He is easily startled and frequently loses concentration and pace in routine activities. He further stated that the Veteran’s ability to follow directions will most likely follow his moods. If the Veteran has frequent interactions and is given instructions with simultaneous, multiple steps he may have significant difficulty. If the Veteran is micro-managed, he is likely to become frustrated and irritable. He most likely will function best if given tasks and left to accomplish with a minimum of interaction with others he will perform satisfactorily. The Veteran experiences trouble interacting with others as evidenced by his lack of friends and frequent disagreements with his girlfriend. The examiner further stated that the social impact of the Veteran’s PTSD symptoms has caused him to have “no social life” and that he isolates himself in his bedroom with the shades drawn. VAMC mental health treatment records from October 2019 to January 2020 note symptoms of depression rated at a 7 out of 10 in severity as well as anxiety. He reported feeling less overwhelmed and irritability wit the recent increase in his prescription of Risperdal. The Veteran reported some concern with recent episodes of anger but stated that he has become much better at managing his anger overall. The Veteran reported joining the local YMCA to potentially meet others and develop friendships. The Board first finds that the preponderance of the evidence weighs against finding that an initial disability rating in excess of 50 percent prior to September 23, 2019 for PTSD is warranted. During this period the Veteran’s PTSD was characterized by some symptoms that are contemplated under the criteria for a higher 70 percent disability rating such as impaired impulse control (such as unprovoked irritability with periods of violence) and an inability to establish and maintain effective relationships. However, the Board concludes that the Veteran’s PTSD symptoms do not rise to the level of severity, frequency, or duration as to be comparable to the symptoms listed as examples of a 70 percent disability rating in the Rating Schedule. See Vazquez-Claudio, 713 F.3d 116 -17; Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). In that regard, the record reflects that the Veteran maintained substantially gainful employment as a cook at a VA facility and has been in a romantic relationship. Moreover, the evidence demonstrates that the Veteran has improved his impulse control and angry outbursts with anger management therapy. In sum, while the Veteran’s PTSD was significantly disabling during this period, and he occasionally exhibited symptoms contemplated by the higher 70 percent rating criteria, the totality of the evidence does not demonstrate that his service-connected PTSD symptomatology approximated symptoms causing social and occupational impairment in most areas of functioning. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board has also determined that a rating in excess of 70 percent for PTSD is not warranted from September 23, 2019 onwards. The evidence of record does not establish that the Veteran has experienced symptoms approximating those suggestive of maximum 100 percent disability rating such 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. A 100 percent rating is not warranted as the evidence does not show that the Veteran’s PTSD symptoms have resulted in total occupational and social impairment. The Veteran has not shown any of the symptoms contemplated under the rating criteria that typify a 100 percent rating on objective examination or in his detailed subjective reports of symptoms. Moreover, the many mental health evaluations of record describe his behavior in mostly unremarkable terms and have never been suggestive of a disability picture consistent with total occupational or social impairment. Therefore, while the Veteran’s disability is admittedly serious, there is no evidence or allegation that suggests it similarly approximates the frequency or duration contemplated by a 100 percent rating. The evidence demonstrates that the Veteran has been able to maintain gainful employment and lives with his girlfriend. In that regard, the Veteran appears to have thankfully retained at least some degree of normal functioning over the years, despite intermittent exacerbations and remissions of serious symptoms. Consequently, the Board finds the preponderance of the evidence is against finding the Veteran’s PTSD symptoms and deficiencies approximating the total occupational and social impairment contemplated by a higher 100 percent rating at any point during the period on appeal and, to that extent, the appeal must be denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.