Citation Nr: 21012037 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-00 526 DATE: March 3, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT During the appeal period, the Veteran’s PTSD more nearly approximated occupational and social impairment with deficiencies in most areas; total occupational and social impairment has not been demonstrated. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2010 to June 2013. His awards include (among many) an Army Commendation Medal, Army Achievement Medal and Afghanistan Campaign Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  The Board remanded the appeal in December 2017 and May 2020 to the agency of original jurisdiction (AOJ) for further development.  The Board’s remands directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998).   In April 2016, the Veteran testified at a videoconference hearing before a Veterans Law Judge; a transcript is of record. In February 2020, the Veteran was informed that the Veterans Law Judge who presided over his hearing is no longer with the Board. The Veteran was advised that if he wished to request a new hearing, he should do so in writing, within 30 days of the date of the letter. The Veteran did not respond. Thus, the Board will assume that the Veteran does not want another hearing and proceed with adjudicating the claim. The Board notes that the appeal previously included a claim for a total disability rating based on individual unemployability (TDIU). However, in an August 2020 rating decision, the RO granted entitlement to a TDIU for the entire appeal period. As such, the claim is no longer before the Board. Entitlement to a rating in excess of 70 percent for PTSD. The Veteran seeks a rating in excess of 70 percent for his PTSD. For the reasons that follow, the Board finds that a higher rating is not warranted at any point during the appeal period. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries.  The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s PTSD has been rated at 70 percent from under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under DC 9411, a 70 percent rating 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when 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. Id. The rating of psychiatric disorders is ultimately based upon their resultant level of occupational and social impairment. 38 C.F.R. § 4.130; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (2013). The evaluation, however, is symptom-driven, meaning that the symptomatology should be the fact-finder’s primary focus in determining the level of occupational and social impairment. Id. at 116-17. This includes consideration of the frequency, severity, and duration of those symptoms. 38 C.F.R. § 4.126(a); Vazquez-Claudio, supra. Significantly, however, the symptoms enumerated in the rating criteria are merely examples of those that would produce such level of impairment; they are not exhaustive, and VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Id. at 115; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Turning to the evidence of record, the Veteran underwent a VA examination in March 2015. At the examination, the examiner reported the following symptoms: anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner also reported that the Veteran showed the following behavioral alterations: persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; persistent inability to experience positive emotions; irritable behavior and angry outburst (with little or no provocation), typically expressed as verbal or physical aggression; hypervigilance; exaggerated startle response; problems with concentration; and sleep disturbance. The examiner noted that the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning, and it is not attributable to the physiological effects of a substance or other medical condition. The examiner concluded that the Veteran’s symptoms result in occupational and social impairment with reduced reliability and productivity. Pursuant to December 2017 Board remand, the Board found that March 2015 VA opinion was inadequate and directed that the Veteran undergo another VA examination. The Veteran underwent another VA examination in April 2018 for his PTSD. In April 2018, in terms of social relationships, the Veteran reported having friends in high school and college but not having any at this time. He reported having problems with his wife and living part-time with his mother. He also reported having trouble with driving and drinking to stay calm. As to occupational impairment, the Veteran reported not being able to hold a job for more than one month. He reported being irritable, having angry outburst and trouble with concentrating. He reported having trouble keeping up with paperwork. The Veteran also reported hearing a loud noise on the subway and dropping to the ground. The examiner noted the following symptoms: depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, difficulty in understanding complex commands, 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, and inability to establish and maintain effective relationships. The Veteran reported brief thoughts of suicide in the past, but no current ideations. The examiner diagnosed the Veteran with a mild alcohol use disorder secondary to his PTSD. The examiner noted that the Veteran is a very verbal male who talked in a medium voice and he looked mildly depressed. The examiner also noted that the Veteran is unable to sustain attention and concentration at a consistent pace. The examiner concluded that the Veteran’s symptoms result in an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. The Board finds the April 2018 VA examination competent and highly probative as the examiner is skilled to render such assessments, based on the review of the claims file and conducted interview and evaluation of the Veteran. Here, the cumulative evidence of record shows that the Veteran’s overall level of occupational and social functioning is consistent with the significant degree of impairment that is contemplated by a 70 percent rating. The Board notes that in addition to the April 2018 VA examination report, the record shows that the Veteran underwent an evaluation of his PTSD in April 2016 for the purpose of determining his eligibility to receive Social Security Administration (SSA) disability benefits. The Veteran reported suffering from PTSD, not being able to “do basic stuff” and having his mother look after and do most of the chores. He reported being afraid of crowds and people and not going out alone. He also reported having lost his friends and his girlfriend. The assessment of the Veteran’s ability to perform work-related activities showed a marked to extreme impairment in his ability to understand, remember and carry out instructions. His ability to interact appropriately with supervisors, co-workers and the public, as well as respond to changes in the routine work setting, was noted as moderately to extremely affected by impairments. These limitations were first found present in April 2015. Based on the foregoing, the SSA found the Veteran disabled. The Veteran has received ongoing treatment for his PTSD. VA treatment records during the period on appeal are generally consistent with the symptoms endorsed by the Veteran during the April 2018 VA examination. The records during that time frame show that the Veteran appeared well groomed. See e.g. April 2015 VA treatment record. The Veteran had a coherent thought process, slightly poor eye contact and adequate but monotonous speech. He was oriented to time, place, and person. His attention, concentration and memory were mildly impaired due to emotional distress. He had a good insight and fair judgment. The Veteran had passive suicidal ideations, decreased self-care and minimal social contact. He exhibited no evidence of hallucinations, delusion or paranoia. The Veteran submitted a statement from his mother in April 2016, who reported that the Veteran is completely detached from the world and he cannot stand being around people. He is very depressed. His mother cooks for him and reminds him to do basic stuff. See also April 2016 Board hearing transcript. He has been unsuccessful with finding a job because he cannot communicate effectively, and he has been failing in school. Based on a review of all of the evidence of record, the Board finds that the Veteran’s current 70 percent rating for PTSD is appropriate. The evaluation of mental health disorders is ultimately based on the degree of occupational and social impairment; however, this determination is symptom driven. In that regard, the Veteran’s PTSD has manifested with symptoms that fall within a range of 30 percent to 70 percent disabling, as identified by the rating criteria. Consistent with the lower end of that range, the Veteran has endorsed symptoms of depressed mood, anxiety, suspiciousness, hypervigilance, chronic sleep impairment, and mild memory loss. The symptoms he endorses which would approximate a 50 percent rating include flattened affect, panic attacks more than once a week, disturbance of motivation and mood, difficulty in establishing and maintaining effective relationships, difficulty in understanding complex commands, impaired judgment, and impaired abstract thinking. The symptoms he endorses which more closely approximate a 70 percent rating include difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively. The Veteran’s PTSD has not more nearly approximated the criteria corresponding to a total 100 percent rating. In reviewing the symptoms that could approximate such a rating, the Board finds that the Veteran does not experience gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. As noted, throughout this appeal period, the Veteran was alert, well oriented, and well groomed. While speech was monotonous, he showed no psychotic symptoms. Thus, the Veteran’s symptoms have not more nearly approximated the criteria for a rating in excess of 70 percent at any time, and the evidence is not evenly balanced. Additionally, the nature, severity, and duration of his current symptomatology does not more closely approximate a total social and occupational impairment. The Board also notes that the April 2018 VA examiner reported occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. The examiner did not find that the Veteran’s PTSD symptoms resulted in total occupational and social impairment. The Board acknowledges that the Veteran reported having an intermittent inability to perform activities of daily living. His mother also reported that she cooks and cares for him. However, a review of the record shows that the Veteran is able to generally function independently on a regular basis. The Veteran is able to feed himself. There are no assertions that the Veteran is unable to groom himself independently, and his grooming and appearance were not noted to be deficient on examination. Although the Veteran may receive assistance in things such as household chores or handling his finances, there is nothing in the record that reflects that the Veteran requires assistance when it comes to conducting his own activities of daily living, to include grooming, bathing, dressing, and feeding himself. The Board also acknowledges reports of the Veteran’s memory impairment. However, there is no lay or medical evidence that his memory problems rise to the level of being unable to recall the names of close relatives, his occupation, or his name. Moreover, while the Veteran has significant social impairment, it appears that the Veteran has a relationship with his mother. Additionally, during the April 2018 VA examination, the Veteran reported being married since 2015. He reported having problems with his wife but continuing to spend part of his time with her. He also reported being in contact with his brother and studying computer science for 2 years. He admitted not finishing college because he could not afford to continue. Thus, the Board does not find that the Veteran exhibits total social impairment as contemplated by the 100 percent rating criteria. The Board has also considered the provisions of 38 C.F.R. § 3.321(b)(1). Under 38 C.F.R. § 3.321(b)(1), in exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities is made. The governing norm in an exceptional case is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that the schedular rating criteria are adequate to rate the Veteran’s psychiatric disability. The Veteran’s PTSD symptoms such as depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, difficulty in understanding complex commands, 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, and inability to establish and maintain effective relationships, are considered as part of the assigned 70 percent disability ratings. 38 C.F.R. § 4.130, DC 9411. The first requirement for extraschedular consideration has not been met; thus, referral to the Director of the Compensation and Pension Service is not warranted. The Board is also mindful of the SSA determination. However, given the different standards utilized by VA and SSA, the Board is not bound by the SSA determination. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). In sum, the severity, frequency, and duration of the Veteran’s symptoms do not result in the level of occupational and social impairment contemplated by a rating in excess of 70 percent. There is no doubt to be resolved; a higher rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Hart v. Mansfield, 21 Vet. App. 505 (2007). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, 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.