Citation Nr: 21010420 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-25 440 DATE: February 24, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT For the entire appeal period, the Veteran’s PTSD is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. CONCLUSION OF LAW The criteria for an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1968 to August 1969. This matter is on appeal before the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in March 2014. The Veteran testified before the undersigned in August 2019. A copy of the transcript is of record. The Board remanded this appeal to the AOJ for additional development in April 2020. The Board finds that the AOJ substantially complied with all remand directives, as records from the Social Security Administration (SSA) were added to the claims file. The Board is obligated to ensure AOJ compliance with remand directives. Stegall v. West, 11 Vet. App. (1998). Therefore, the case is ready for adjudication. 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. The percentage ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107 (a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. §§ 4.3, 4.7. Otherwise, the lower rating will be assigned. Id. The Veteran’s PTSD is rated under 4.130, Diagnostic Code 9411. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 70 percent rating is provided 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. A 100 percent rating is provided 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. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign a rating 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). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). As noted, a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the presence of the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d at 117-118. In addition to requiring the presence of the enumerated symptoms, 38 C.F.R. § 4.130 also requires that those symptoms have caused the specified level of occupational and social impairment. Id. However, the factors listed in the rating schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating, so the determination should not be limited solely to whether a veteran exhibited the symptoms listed in the rating scheme, but should also be based on all of a veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002); 38 C.F.R. § 4.126(a). It is error where the Board fails to assess adequately evidence of a sign or symptom experienced by the veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the veteran’s symptoms as a whole. However, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria, including suicidal ideation, is not necessarily dispositive of any particular disability level. Bankhead v. Shulkin, 29 Vet. App. 10, 25 (2017). Having reviewed the applicable laws and Diagnostic Code, the question before the Board is whether, during the appeal period, the Veteran’s PTSD caused total social and occupational impairment. Turning to the evidence, the Board notes that the Veteran’s SSA records from July 2013 show that his PTSD symptoms, including a short temper and anger, interfered “some” with interpersonal relationships, and intermittently interfered with his ability to relate to people. Nevertheless, the Veteran was able to understand and remember work instructions and maintain regular attendance. The Veteran regularly attended mental health treatment appointments at a VA medical center (VAMC). In September 2013 and October 2013, he reported irritability, anger, nightmares, startle, and avoidance. The Veteran was cooperative and neat in appearance, with no suicidal ideation. His mood was anxious. In November 2013, the Veteran reported that his major problem was anger. He frequently argued, and reported screaming and yelling. The Veteran also endorsed anxiety and insomnia. His strengths and resources included his large extended family. He reported being able to go to family functions. The Veteran enjoyed activities and hobbies like fishing, going to the beach, hunting, and hiking. The Veteran was alert and oriented, had a dysthymic mood with sad affect, but had normal speech, linear thoughts, no suicidal ideation, no hallucinations, no paranoia, and no delusions. At appointments in January 2014 and February 2014, the Veteran had normal speech, linear and logical thought process, no suicidal ideation, no delusions, and no hallucinations. The Veteran underwent a VA examination in February 2014. He was diagnosed with PTSD and depressive disorder. It was not possible to differentiate what symptoms were attributable to each diagnosis because the symptoms were interrelated. The Veteran’s symptoms included intrusive distressing memories, distressing dreams, dissociative reactions, avoidance, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, problems with concentration, depressed mood, anxiety, suspiciousness, chronic sleep impairment, memory loss, impaired abstract thinking, and difficulty in adapting to stressful circumstances, including a work-like setting. The Veteran did not have panic attacks; near-continuous panic or depression affecting the ability to function; impairment of short- and long-term memory with retention of only highly learned material and forgetting to complete tasks; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; difficulty understanding complex commands; impaired judgment; gross impairment in thought processes or communication; inability to establish and maintain effective relationships; suicidal ideation; obsessional rituals interfering with routine activities; impaired impulse control, such as irritability with periods of violence; spatial disorientation; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; neglect of personal appearance or hygiene; intermittent inability to perform activities of daily living; or disorientation to time or place. The Veteran was capable of managing finances. In his March 2014 Notice of Disagreement, the Veteran reported mood swings, anger, and flashbacks. In an assessment for SSA dated in April 2014, the Veteran was found to have no difficulty with activities of daily living, and no episodes of decompensation. The Veteran had moderate difficulties maintaining social functioning and mild difficulties maintaining concentration, persistence, or pace. Specifically, he had no significant limitations carrying out short and simple instructions, carrying out detailed instructions, maintaining attention for extended periods, performing activities within a schedule, sustaining a routine, or making decisions. He had moderate limitations working in coordination or proximity to others. Additionally, he was moderately limited in his abilities to interact with people, respond to criticism, and get along with peers or coworkers. The Veteran was not significantly limited in his abilities to ask simple questions, request assistance, maintain appropriate behavior, and adhere to basic standards of neatness and cleanliness. The evaluator opined that the Veteran’s primary limitations are caused by his anger and irritability. However, a review of records showed he was able to relate to his grandchildren, enjoy activities, go out daily, drive, and shop. Therefore, his functioning was not markedly impaired. In May 2014, the Veteran’s wife submitted a written statement. She reported that they had been married for over 40 years, and the Veteran was verbally and physically abusive early in their marriage. The Veteran’s wife indicated that the Veteran still had anger issues, depression, and flashbacks. In July 2014 and August 2014, the Veteran continued to report daily anger. His memory was grossly intact, speech had normal rate and tone, and thought processes were linear, logical, and goal-directed. No circumferential or tangential thoughts were noted, nor was there suicidal ideation, delusions, or hallucinations. The Veteran was oriented, had fair-to-good judgment and impulse, and he had fair-to-good rapport with the provider. At an appointment in September 2014, the Veteran reported completing activities such as yard work, washing his car, and going to the beach to swim and walk. In November 2014, February 2015, June 2015, March 2016, April 2016, June 2016, July 2016, and August 2016, the Veteran was noted to have adequate hygiene and grooming, and no suicidal ideation or hallucinations. He was oriented and had logical thoughts. In August 2016, the Veteran’s representative submitted medical records regarding his spouse’s mental health. The treatment provider wrote that the Veteran’s PTSD had impacted his wife, and her symptoms and diagnosis “should be looked at as a factor in [the Veteran’s] application for benefits.” At appointments in September 2016, November 2016, February 2017, May 2017, June 2017, September 2017, October 2017, November 2017, February 2018, May 2018, and October 2018, the Veteran was oriented, had adequate grooming, and had no suicidal ideation, paranoia, delusions, or hallucinations. The Veteran was afforded another VA examination in November 2018. The Veteran’s symptoms included intrusive distressing memories, distressing dreams, dissociative reactions, avoidance, persistent and exaggerated negative beliefs or expectations about oneself, others, or the world, persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritable behavior and angry outbursts, hypervigilance, reckless or self-destructive behavior, exaggerated startle response, problems with concentration, depressed mood, anxiety, suspiciousness, chronic sleep impairment, panic attacks more than once per week, mild memory loss, disturbances of motivation and mood, impaired impulse control, and difficulty in adapting to stressful circumstances, including a work-like setting. The Veteran did not have near-continuous panic or depression affecting the ability to function; impairment of short- and long-term memory with retention of only highly learned material and forgetting to complete tasks; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; difficulty understanding complex commands; impaired judgment; impaired abstract thinking; gross impairment in thought processes or communication; inability to establish and maintain effective relationships; suicidal ideation; obsessional rituals interfering with routine activities; spatial disorientation; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; neglect of personal appearance or hygiene; intermittent inability to perform activities of daily living; or disorientation to time or place. The Veteran was pleasant, cooperative, and engaged throughout the evaluation. He was capable of managing finances. At appointments in January 2019 and April 2019, the Veteran was noted to have no psychoses, suicidal ideation, delusions, or paranoia. He had no dysperceptions, was oriented, had normal speech, and had attention and concentration within normal limits and sustained. The Veteran testified at a Board hearing in August 2019. He reported forgetting names of friends, losing his temper with his wife, irritability, panic attacks with fireworks, and discomfort in crowds. The Veteran testified that he got along with his family “pretty good,” he was not a danger to himself or others, and he sometimes had to be reminded about hygiene. The Veteran’s wife testified that he did not socialize. The Veteran had another VA examination in September 2019. He had mood swings, irritability, isolation, depressed mood, suspiciousness, difficulty adapting to stressful circumstances, poor sleep, nightmares, racing thoughts, irritable outbursts, and difficulty establishing and maintaining relationships. The Veteran denied suicidal ideation. The Veteran did not have near-continuous panic or depression; memory loss; circumstantial, circumlocutory, or stereotyped speech; intermittently illogical, obscure, or irrelevant speech; difficulty understanding complex commands; impaired judgment or abstract thinking; gross impairment in thought processes or communication; spatial disorientation; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; neglect of personal appearance or hygiene; intermittent inability to perform activities of daily living; or disorientation to time or place. At appointments in January 2020 and March 2020, the Veteran had no suicidal ideation, no delusions, no hallucinations, and no psychoses. He presented with normal speech, attention and concentration within normal limits, intact memory, and linear thought processes. The Veteran had a telephone appointment in April 2020, and reported that the pandemic caused him no distress. He was doing “fine.” The Veteran was noted to be oriented, with no suicidal ideation, delusions, or hallucinations. After a de novo review of the evidence, the Board concludes that the evidence does not support a 100 percent rating for PTSD. The record documented PTSD symptoms impaired impulse control and irritable outbursts which represents deficiencies in thinking and judgment. Additionally, the Veteran reported anxiety, chronic sleep problems, nightmares, isolation, avoidance, irritability, anger, and depression. Therefore, throughout the appeal period, the Veteran has had deficiencies in social relations, work, and mood, which constitutes deficiencies in most areas of life, and total social and occupational impairment is not more nearly approximated. The Veteran maintained an ability to identify and report problems to his treatment providers and cooperate with them, which indicates he did not have a total social impairment. The Veteran also maintained a relationship with his wife, children, and grandchildren, and enjoyed activities such as yard work, fishing, going to the beach, and hunting. The Veteran was always coherent, and oriented to time and place, and did not experience paranoia, delusions, hallucinations, or suicidal ideation. There is no evidence in the record of an inability to perform activities of daily living, such as maintaining minimal hygiene. In fact, the Veteran was determined to be able to handle finances by VA examiners, and drive, and shop by an SSA evaluator. Moreover, the Veteran did not exhibit grossly inappropriate behavior or persistent danger to self or others. Finally, the Veteran’s remote memory was intact, as evidenced by his report of experiences of childhood and military service during the VA examinations of record. As the Veteran’s symptoms of nightmares, irritability, hyperarousal, anxiety, intrusive thoughts, depressed mood, sleep impairment, disturbances of motivation and mood, difficulty maintaining effective relationships, and anger and irritability are addressed by a 70 percent rating, a 100 percent rating is not warranted. The Board has considered the Veteran’s testimony and reports of symptoms, as well as those of his wife. However, the reported symptoms do not demonstrate total impairment caused by the Veteran’s PTSD. The Board has also considered the impact of the Veteran’s symptoms on his wife. However, the Board notes that his spouse’s symptoms are not permissibly considered under the rating criteria. As total social and occupational impairment of the Veteran is not shown in the record, the claim for an increased rating is denied. The benefit-of-the-doubt doctrine does not apply to this claim, as the preponderance of the evidence is against the claim for a higher rating. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, Associate 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.