Citation Nr: 21007745 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 20-04 449 DATE: February 10, 2021 ORDER Entitlement to a rating greater than 70 percent for posttraumatic stress disorder (PTSD) with major depressive disorder is denied. FINDING OF FACT The Veteran’s PTSD has resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran’s PTSD has not resulted in total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a rating greater than 70 percent for PTSD with major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.124(a), 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to May 1971. The Veteran’s claim was most recently before the Board in August 2020 when it was remanded for further development. The Board is satisfied that there has been substantial compliance with the August 2020 remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a rating greater than 70 percent for PTSD with major depressive disorder The Veteran contends that his service-connected PTSD warrants an evaluation higher than his current 70 percent disability rating. When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of examination. It is the responsibility of the rating specialist to interpret reports of examinations in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Under the provisions of DC 9411, a rating of 100 percent is assignable 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. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Veteran was assigned a 70 percent evaluation for his PTSD in a December 2018 rating decision. The evaluation was based on an August 2018 VA examination. During the examination, the Veteran reported that since he has stopped working, “the memories are coming back and its horrible.” He endorsed feeling depressed, isolating himself and withdrawing from others. The Veteran also endorsed thoughts of death with no suicidal ideation, plan or intent. He also reported memory loss in which he forgets names, dates, plans and “words I should know.” He is an art expert, but does not remember any more information related to his interests in art. The Veteran’s wife stated his memory issues has progressively worsened over the last 10 years. He endorsed feeling hypervigilant in which he recalls being a supermarket and a little boy holding a toy gun to his back and he immediately hit the ground and yelled at the child's parent. The Veteran also reported experiencing panic attacks in crowds and standing in line. The examiner characterized the Veteran’s PTSD as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The specific symptoms reported by the Veteran were depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short and longterm memory, disturbances in motivation and mood, and difficulty adapting to stressful circumstances, including work and a worklike setting. An October 2018 mental health treatment record documented the Veteran’s report that after his wife started working and began to leave the Veteran alone at home, he began to feel very depressed. In that context, he “began to think about suicide, which hasn’t happened in a while.” He reported that on one occasion, the week after she began working, he contemplated killing himself with a firearm or a sword. Suicidal thoughts did not persist. The Veteran reported that he has had ongoing improvement in symptoms since. Another treatment note from March 2020 documented that the Veteran’s affect was broad, and his thought process was linear and logical with no preoccupations or delusions elicited. The Veteran did not endorse suicidal or homicidal ideations. He was orientated to person, place, situation, date and he had no hallucinations or paranoid ideas. The examiner found that the Veteran’s attention and concentration was grossly normal as was his recent and remote memory. The Veteran displayed good judgment and impulse control. On VA examination in December 2020, the examiner characterized the Veteran’s PTSD as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The specific symptoms reported by the Veteran were depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short and longterm memory, disturbances in motivation and mood, difficulty in establishing and maintaining effective work, social relationships and difficulty adapting to stressful circumstances, including work and a worklike setting and neglect of personal appearance and hygiene. During the examination, the examiner found the Veteran’s orientation was within normal limits. His appearance, hygiene and behavior were appropriate. The Veteran maintained good eye contact during the examination and his affect and mood were anxious and depressed. The Veteran’s communication and speech was normal. The Veteran’s thought processes were appropriate and there was no report of past or present panic attacks, delusions, hallucinations, or obsessions. He was able to understand directions and answer direct questions or appear confused. The Veteran did report a mild degree of memory impairment related to names, directions and recent events. Endorsement of suicidal and homicidal ideation were absent. The Board finds that a rating in excess of 70 percent is not warranted. The Board finds the August 2018 and December 2020 VA examination are probative evidence. The examiners characterized the Veteran’s occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, the examiner provided specific detailed symptoms that do not meet or more closely approximate the criteria for at the criteria for a 100 percent rating. There is no evidence that the Veteran’s psychiatric disability results in total occupational and social impairment and there was no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself 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, or his own name. The Board acknowledges the Veteran’s statements regarding his PTSD and depression symptoms. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of his psychiatric disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined him or his medical records during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran’s subjective observations. In summary, the preponderance of the evidence is against the claim for a rating in excess of 70 for service-connected PTSD. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.