Citation Nr: 21010386 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-27 619 DATE: February 24, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s PTSD has manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, but not in total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1990 to November 1995. Only the period from June 1990 to June 1994 is considered to be honorable. This matter comes before the Board on appeal from a March 2017 Regional Office (RO) rating decision. In March 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Veteran withdrew his claim for TDIU in a September 2020 statement. 1. Entitlement to a rating in excess of 70 percent for PTSD is denied. Disability ratings are determined by comparing a veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. “Staged ratings,” or different percentage evaluations for separate periods based on the facts found, may also be awarded. Fenderson v. West, 12 Vet. App. 119, 126-7 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran’s PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Disabilities that are evaluated under 38 C.F.R. § 4.130 are to be rated pursuant to VA’s General Rating Formula for Mental Disorders. A 0 percent (noncompensable) rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is assigned when there is 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 continuous medication. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 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. A 70 percent evaluation is warranted when there is 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); and the inability to establish and maintain effective relationships. A 100 percent evaluation is warranted if there is 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. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held “that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In particular, the Federal Circuit has expressly rejected interpreting 38 C.F.R. § 4.130 in such a manner that would render specific symptomatology a secondary consideration at the 70 percent level. Id. Turning to the evidence of record, an August 2018 VA examination report estimates that the Veteran’s level of occupational and social impairment is best summarized as “Occupational and social impairment with reduced reliability and productivity.” The Veteran “reported having anger problems, so that he lashes out angrily over matters of little or no significance. He is not physically aggressive.” He reported having no friends and not liking leaving the home, so his family sometimes goes out without him. He reported that he does sometimes go to his children’s school activities. With respect to current complaints and symptoms, he reported that he is anxious every day and easily startled. He sometimes initially mistakes trees or inanimate objects for people or possibly dangerous objects but will then realize his error. His sleep is generally disturbed. He wakes up easily and will get up and check the locks on the doors. He reported that he stayed in the motel room on a recent vacation while his family went out. He checks and rechecks the doors before going to bed. He asks his wife if she has checked, and even if she says she has, he will get up and check them again. He reported anger problems and that he yells and curses at his wife and children over small things like doing dishes or picking up after themselves. He reported that he is worried about his marriage. He reported that he is depressed much of the time and has little motivation and low energy. He sometimes has crying spells. Of the enumerated rating criteria, the examiner noted that the following symptoms actively apply to the Veteran’s PTSD: depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; 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 obsessional rituals that interfere with routine activities. In addition to these enumerated symptoms, the examiner also noted that the Veteran’s PTSD manifests in decreased sex drive. On behavioral observation, the examiner noted that the Veteran’s hygiene was good, but his grooming was poor. He was alert and oriented to person, place, and situation. Eye contact was fair. Psychomotor activity was mildly agitated. His speech was regular and rate and was clear and coherent. However, he spoke in sentence fragments and frequently switched topics. His mood was moderately anxious, which was consistent with his report. His affect was full in range. Attention and concentration were mildly impaired, and the Veteran frequently lost track of a question or was distracted. His thinking was mildly disorganized but was generally goal-directed. Basic judgment was not impaired. Insight into his difficulties was poor. There were no indications of a formal thought disorder or delusions. He did not report hallucinations, but he tends to misperceive objects at first glance. The examiner noted that the Veteran’s reported checks and re-checks for locked doors are instances of obsessive thinking and compulsive behavior. He denied any plans or intention of harming himself or anyone else. There were no indications that he was minimizing or exaggerating his symptoms. It was noted that the Veteran is capable of managing his financial affairs. In a September 2019 statement, the Veteran described his fibromyalgia symptoms and noted that “It’s very depressing and frustrating to the point where I really don’t want to do anything, but wishing I could go to sleep and not wake up.” He also noted that his “brain feels foggy and can’t focus on mental tasks. This condition has caused me significant distress or impairment in social, occupational, or other important areas of functioning and I have no hope this condition will improve.” He stated that “I often get angry and agitated for no reason.” He described feeling “hopeless, helpless and defeated.” The Veteran underwent a mental status examination in connection with his disability benefits claim with the Social Security Administration (SSA) in September 2019. The resulting October 2019 examination report notes that the Veteran evidenced appropriate attention to hygienic care. He was alert and oriented and speech was logical, goal directed, and fully intelligible. Affective expressions as observed during the interview were congruent with the content of his conversation and responsive. He did not evidence significant problems with functional communication capabilities. He reported that he feels overwhelmed and sometimes feels like giving up. He described symptoms of depression, including feeling sadness, loss of interest in activities, low energy level, and difficulties with attention and concentration. He indicated he has some problems with outbursts of anger. He reported that he had previously considered suicide but never acted on these thoughts. He denied presently entertaining such thoughts. He described anxiety symptoms, including nightmares, intrusive thoughts and memories, hypervigilance, and agitation. He sometimes awakens at night screaming due to his PTSD. He reported that he lives in fear of even going outside and dealing with people. He described social contact indicating that he does not maintain ongoing friendships. He mentioned that he used to have three close friends who are now deceased. He mentioned he has a positive and supportive relationship with his wife. A February 2020 VA examination report notes that the Veteran’s level of occupational and social impairment is best summarized as “Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood.” The Veteran reported that he and his wife are still married, and he has a positive relationship with his daughter and step-daughters. He reported that his marriage is “pretty rocky,” but they were about to begin therapy. The Veteran reported that he continues to suffer from depression and anxiety. He has significant irritability and angry outbursts and will snap at his family members when he is angry. He reported that there is a lot of tension in his relationship with his family. He does not sleep well. He reported that his anxiety rises during the day, specifically when he is stressed. He does not like to leave the house and be around others, and he avoids crowds. He denied participating in any pleasurable activities. His wife stated that the Veteran is either at home or at the VA. He does not attend any event outside his home. He spends most days at home watching television and sleeping throughout the day. He has some friends and speaks to them approximately once per month but does not see them in person. He may avoid phone calls at times. He does not trust others easily and rarely experiences happiness or joy. He reported he does not like to be in crowds and is paranoid about something bad happening. He has episodes where he feels very shaky and has to remind himself to breathe. He denied any suicidal ideation or intent. He reported that he struggles to cope with stress and tends to become very angry when overwhelmed. Of the enumerated rating criteria, the following were noted to apply to the Veteran’s diagnosis: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; and neglect of personal appearance and hygiene. The examiner noted that the Veteran was pleasant and cooperative throughout the interview. His affect was euthymic, with full-ranging appropriate affect. Cognition, impulse-control, and judgment were observed to be intact. No obvious thought process, content, or communication impairment was observed during the assessment. Eye contact was poor, and he stared at the floor for most of the interview. The Veteran did not have any other symptoms attributable to PTSD. He was capable of managing his own financial affairs. VA medical records from the appeals period do not note symptoms that are more severe than those than are noted in the above evaluations. In a February 2020 statement, the Veteran’s mother noted that the Veteran “cannot remember from day to day what he did from day to day.” In a February 2020 statement, the Veteran’s wife described the Veteran’s anger, noting that “Small tasks had become big challenges. He would try to fix something in the house, then end up sweating profusely and angry with a bigger problem than before.” The Veteran testified at his March 2020 Board hearing that he thinks his PTSD has worsened since he initially applied for benefits. He noted that he “went through a couple of classes and found some good coping skills. But it seemed to just continue to get worse.” He noted that that was why he applied for an increased rating (in January 2017). His wife testified that the Veteran “was upset” when he received the letter telling him that his rating was going to be reduced. (The Veteran’s 70 percent rating was subsequently restored in the July 2020 Board decision.) She noted that the Veteran “was making an effort to try to go to classes at the VA to try to do anything and everything he could do, that was the first time that [the Veteran] had ever been open to any of those things.” She noted, however, that the Veteran “was still struggling. He was on quite a bit of medication at that time.” The Veteran and his wife testified that his treatment providers are constantly changing, and that it is very difficult to start over with a new person so often. Based on the above, the Board finds that entitlement to a 100 percent rating for PTSD is not warranted, as the Veteran’s PTSD symptoms most closely approximate the criteria for his current 70 percent rating. With respect to the enumerated criteria, the Board notes that neither VA examiner found that the Veteran’s PTSD is characterized by any of the individual criteria that are enumerated in the 100 percent rating in the rating schedule. Specifically, while the above evidence does reflect impairment of thought processes or communication, it does not rise to a severity to be considered “gross.” For example, the August 2018 VA examination report notes impairment in thought processes or communication in that the Veteran’s psychomotor activity was mildly agitated, that he spoke in sentence fragments, and that he frequently switched topics. It also notes that attention and concentration were mildly impaired, and his thinking was mildly disorganized. The October 2019 mental status examination report notes that the Veteran did not evidence significant problems with functional communication capabilities, but he did have intrusive thoughts. The Board finds that these impairments are contemplated by various lower disability ratings and do not rise to the level of gross impairment of thought processes or communication. The Board also finds that the record does not demonstrate persistent delusions or hallucinations. The August 2018 VA examination report notes that the Veteran sometimes initially mistakes trees or inanimate objects for people or possibly dangerous objects. However, neither VA examiner found that the Veteran’s PTSD manifests in persistent delusions or hallucinations. The Board finds that this symptom is not persistent and thus does not rise to the level of persistent delusions or hallucinations. The Board also finds that the record shows no evidence of grossly inappropriate behavior, as the Veteran’s angry outbursts are contemplated by the 70 percent criterion of unprovoked irritability with periods of violence. While the record indicates a history of suicidal thought, the Board finds that this symptom is contemplated by the 70 percent criterion of suicidal ideation. It does not reflect a persistent danger of hurting self or others. While the August 2018 VA examination report notes that the Veteran’s grooming was poor, there is no indication of an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene) due to psychiatric impairment. (The record does reflect difficulties performing some activities of daily living, but these impairments have been attributed to non-psychiatric disabilities.) The poor grooming that was noted on the August 2018 VA examination report is contemplated by the 70 percent criterion of neglect of personal appearance and hygiene. The record does not reflect any disorientation to time or place or similar level of disorientation. The record reflects some memory impairment. However, the August 2018 VA examination report only notes mild memory impairment, while the February 2020 VA examination report notes mild memory loss and impairment of short and long term memory. These symptoms are contemplated by the 30 percent and 50 percent rating criteria. It does not reflect memory impairment that is serious enough to rise to the level of memory loss for names of close relatives, own occupation, or own name. In addition, the August 2018 VA examination report notes that the Veteran’s PTSD is also manifested by decreased sex drive. The Board finds that this symptom is most comparable in severity, frequency, and duration to the 30 percent criterion of depressed mood. This symptom therefore does not justify the assignment of a 100 percent rating. The Board finds that the remaining symptoms as listed in the above evidence are either expressly contemplated by the lower rating criteria or were of a similar severity, frequency, and duration to such criteria. More broadly, the Board finds that the above symptoms do not result in total occupational and social impairment. In short, the Board finds that the Veteran’s PTSD is properly compensated by the 70 percent rating and that the criteria for a 100 percent rating have not been met. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Elizabeth Jalley, 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.