Citation Nr: 21012834 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-03 730A DATE: March 5, 2021 ORDER Entitlement to an increased 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 has not shown to have been productive of total occupational and social impairment. 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, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1964 to April 1969. Increased Ratings Disability ratings are determined by comparing a Veteran’s symptomatology during the pertinent period on appeal with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Lay evidence may be competent to address any matter not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 1. Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) The Veteran’s service-connected psychiatric disorder has been rated by applying the criteria in 38 C.F.R. § 4.130, Diagnostic Codes 9411, concerning PTSD. This Diagnostic Code refers to the VA schedule General Rating Formula for Mental Disorders. The VA Schedule rating formula for mental disorders reads, in pertinent part, as follows: A 100 percent rating (the maximum schedular rating) - 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, Diagnostic Code 9411. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency 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). The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed in the rating criteria are not exhaustive, but rather, serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas. That is, the regulation requires an ultimate factual conclusion as to the Veteran’s level of impairment in most areas. Vasquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. 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. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002); see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). The Board recognizes that there is no formula to follow when assigning ratings. Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran’s psychiatric disorder that affect the level of occupational and social impairment. Id. While particular symptoms associated with a higher rating may be present during pertinent portions of the appeal period, such symptoms are exemplars to aid in characterizing the degree of social and occupational impairment. Thus, while certain symptoms might be present on isolated occasions, such symptoms must produce the contemplated levels of occupational and social impairment to provide a basis for increased rating assignments in any particular period. 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. In the rating decision on appeal, the VA granted the Veteran an increase rating of 70 percent for the Veteran’s PTSD, from the inception of the claim. As this grant is not the maximum allowed rating for PTSD, the grant is not considered a full grant, and as such, the claim has continued to the Board for appellate review. Here, as noted above, to meet the criteria for a 100 percent rating, the Veteran’s service-connected mental health pathology must have manifested in 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 Board finds that impairment of such severity is not shown by the evidence of record, at any point during the claims period, and as such, a 100 percent rating is not warranted. As note earlier, the Board will not address every piece of evidence submitted by the Veteran or of record. However, a thorough review of the entire record, to include the voluminous VA and private psychiatric treatment evidence of record reveals no instance during the claims period were the Veteran can be considered totally impaired due to his psychiatric disability. While the Veteran’s psychiatric condition has been cited to cause various deficiencies in social interaction, mood, and even judgment, the Board finds that when most severe, no examiner has noted the Veteran to not be able to take care of himself, to include being appropriately groomed and dressed for examinations and counselling sessions, or to have such severe memory loss as to forget names and places. Additionally, the Board notes that while the Veteran’s condition caused a level of isolation, the Veteran still maintains his familial relationships, to explicitly include with his wife of more than two decades. As such, the Board does not find that the Veteran’s PTSD disability is productive of a total occupational and social impairment. Here, for the entire period that spans nearly two decades, the VA has afforded the Veteran several VA examinations to assess the nature and severity of his service-connected PTSD, to include in January 2004, July 2007, October 2014, and April 2019. In addition to these VA examinations, the record is also full of both private and VA psychiatric contemporaneous treatment records and assessments. The Board will discuss these in turn. Initially, the Veteran was afforded a VA examination that assessed that nature and severity of his PTSD in January 2004. Upon an in-person interview, and a noted review of the Veteran’s medical history, the examiner rendered an Axis I diagnosis of PTSD. During the assessment, the Veteran endorsed social isolation, depressed mood, anxiety, and overall lack of motivation, due mostly to his physical restrictions. However, while the Veteran reported little interest in social interactions and hobbies, the Veteran was noted to be married, for more than five years, at this time. The Veteran stated that he had a good relationship with his wife, and previously had friends. While the Veteran noted that his wife did many of the activities of his daily living, to include cooking and cleaning, such was the case mostly because of his physical disabilities. Furthermore, at the examination, the Veteran was noted to be well groomed, punctual, appropriate in behavior, and articulate. The examiner noted the Veteran to be pleasant, cooperative, and conversant, with no evidence of hallucination or suicidal/homicidal ideations, or any cognitive difficulties, to include any evidence of memory loss. In March 2005, the Veteran was evaluated by a private examiner; the document does not note the title of the examiner, nor the place or situation of the examination. Contemporaneous notes taken during this examination relay that the Veteran appeared at the interview neatly dressed, was friendly and cooperative, with appropriate speech, normal memory function, and was oriented to place, time, and person. The Veteran denied having delusions or hallucinations, and endorsed some sleep disturbance and depression. No suicidal or homicidal thoughts or ideations were noted. The examiner noted that upon testing, the Veteran displayed no evidence of psychosis, having passed simple memory and orientation testing. Upon further assessment, the examiner noted depression, some evidence of reported irritability and angry outbursts, avoidance, and isolation, to include difficulty establishing social and occupational relationships. The examiner ultimately diagnosed the Veteran with PTSD, noting severe social and occupational impairments. In July 2007, the Veteran was again afforded another VA psychiatric examination to assess the nature and severity of his service-connected PTSD. During the examination, the Veteran was again noted to be casually dressed and well groomed, with “fair” hygiene. The Veteran was noted to have normal speech, was cooperative, oriented, sincere, and described as a reasonable historian. Memory testing revealed no marked defect in memory, no reports of hallucinations or suicidal/homicidal ideations, and no difficulty understanding simple commands. The examiner diagnosed the Veteran with PTSD, and concluded that the Veteran had occupational and social impairments, to include maintaining interpersonal relationships. However, while the Veteran was found to have some issues with irritability, impulse control, and communication, the examiner noted that the Veteran generally functioned satisfactorily with routine behavior, self-care, and normal conversation. The evidence includes a February 2008 a letter from the Veteran’s treating counselor for his PTSD. The Board notes that the purpose of the letter was to establish that the Veteran was, essentially, not able to work due to his psychiatric disability, to include his PTSD, anxiety, and irritability. The examiner noted the Veteran’s inability to interact with people because he was on “edge” all the time, and that such would prevent employment. In March 2012, the same private counselor provided another opinion letter, essentially noting the same; the examiner indicated that the Veteran was on “edge” with severe anxiety, was extremely guarded, untrusting, and paranoid. The examiner characterized the Veteran’s PTSD as extremely severe, however, noted no social or general functional impairments. In support of his claim, the Veteran submitted his May 2010 private psychiatric evaluation report. Upon meeting the Veteran, the examiner noted him to be depressed and isolated. The examiner relayed that, essentially, the Veteran only socialized with his wife. On examination, the Veteran was noted to be oriented to time, place, and person, and he presented neatly in appearance. The examiner noted the Veteran’s speech was slow, he demonstrated poor judgment, and he had normal memory function. The examination revealed additional symptoms of social isolation, irritability with angry outbursts, a lack of motivation, depression, anxiety, and hypervigilance. The examiner determined the Veteran had an inability to communicate with others and cited multiple firing from jobs. While the examiner noted the Veteran had issues maintaining relationships, the examiner highlighted that Veteran remained married and had a good relationship with his spouse. The VA afforded the Veteran another VA examination for his PTSD in October 2014, where he was again diagnosed with PTSD. During the examination, the Veteran was noted to alert and oriented, cognitively intact, cooperative, and had a full range of affects. The examiner noted no hallucinations or delusion, and no evidence/reports of suicidal/homicidal ideations. The Veteran’s symptoms include depressed mood, anxiety, hypervigilance, panic attacks (weekly or less), sleep impairment, and memory loss. The examiner did note the Veteran’s inability to essentially establish interpersonal relationship, rather socially or occupationally, and notes that the Veteran’s isolation would prevent him from working in a public environment, however, could be able to work in situations of limited interaction with co-workers. To this end, the examiner noted no marked issues with the Veteran’s concentration or ability to follow simple/complex commands. Overall, the examiner noted that the Veteran’s condition alone, only was productive of occupational and social impairments with reduced reliability and productivity. In an April 2019 VA examination for PTSD, the Veteran’s condition was against evaluated of the same severity as the pervious VA examination. After a noted review of the Veteran’s claims file and medical history, and an in-person interview, the VA examiner diagnosed the Veteran with PTSD, and concluded that such condition was only productive of occupational and social impairments with reduced reliability and productivity. Here, upon interviewing the Veteran, it was revealed that the Veteran remained married with the same spouse for the last 20 years. The Veteran stated he does not socialize with other and has hobbies such as exploring the “uses of wild plants.” For symptoms the Veteran presented with anxiety, suspiciousness, sleep impairment, impaired impulse control, and difficulty establishing and maintaining relationships. The examiner, however, noted no report of hallucinations, severe memory loss, or lack of orientation. The Board notes that a review of the remaining medical evidence, to include contemporaneous VA and private treatment/counseling records, reveals no additional, or more serious symptoms or diagnoses related to the Veteran’s psychiatric disability than that already represented by the VA and private reports. As such, the Board will not discuss these records in detail, as they do not present a worse condition than that already described herein. To this end, the Board finds that, there is consistent evidence that the Veteran’s PTSD symptoms present a severe impairment to both social and occupational functioning, consistent with the high 70 percent rating currently assigned for the period. However, the information in this evidence does not indicate total occupational and social impairment due to PTSD as contemplated by the schedular criteria for a 100 percent rating. The Board finds that the PTSD impairment shown in these reports are not consistent with a level of severity contemplated by the schedular criteria for a 100 percent rating, as there is no evidence of any of the critical symptoms that causes total impairment. The Board notes that a 100 percent rating contemplates symptoms 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. None of these have been presented in the evidence described herein. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the “total” level of impairment required for a 100 percent. The Board finds that the disability picture of the Veteran’s PTSD sits in contrast with the criteria for a higher 100 percent rating. Here, in no instance, to include the private examinations and assessments submitted by the Veteran’s treating counselors, has the Veteran ever present with an inability to maintain personal hygiene, disorientation in any way, or memory loss so severe as to forget his spouses name. The Veteran has always been noted to present as neatly groomed and appropriately dressed at each examination and counselling session. The Board also finds that each treatment and examination records has noted that the Veteran was on time, cooperative, and showed no defect in memory, concentration, and/or orientation. While the Veteran noted social isolation and communication issues, the Veteran has been married to his wife for the last 20 years and has maintained a good relationship with her. The Veteran has always claimed to isolate himself, however, there is some evidence that he has had, or maintains a few friends, which he notes as female friends who find him as a “big brother” figure. Although the Veteran has been found to be irritable and has had potential angry outbursts, such has not been noted to cause any of the professionals to evaluate him to be concerned that he was a danger to himself or others. Indeed, no examiner described above, or in his contemporaneous treatment notes, has ever noted the Veteran of even having hallucinations/delusions, or suicidal/homicidal ideations. The Board does not find that such findings by the Veteran’s own private counselors to be indicative of the criteria contemplated by a 100 percent rating, or a total impairment in social and occupational functioning. Consequently, the Board finds that there is no evidence suggesting that the Veteran’s PTSD manifested in total occupational and social impairment warranting a 100 percent rating at any time during the claims period. The Board finds that no further increased and/or additional ratings are warranted in this case. The Veteran’s psychiatric symptoms are not otherwise shown to have been of similar severity, frequency, and duration as contemplated by the criteria for higher ratings. See Vazquez-Claudio, 713 F.3d at 118. The Board finds that the Veteran’s disability picture, taken as a whole and in combination with the objective psychiatric examination reports, has most nearly approximated a total social and occupational impairment. While there is certainly evidence of severe impairment, to both the Veteran’s ability to socialize and to find employment, such psychiatric impairment has not reached a level in which the Veteran is no longer able to maintain his hygiene, conduct himself appropriately during an examination interview, interact with his wife, or know where he is at any given time. In reaching this conclusion, the Board has considered the benefit-of-the-doubt rule. However, as the preponderance of the evidence is against the award of any further increased rating, that doctrine is not applicable to this extent. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As such, the Veteran’s claim must be denied. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, 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.