Citation Nr: 21022470 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-32 276 DATE: April 15, 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 is characterized by occupational and social impairment with deficiencies in most areas; however, it is not characterized by symptoms resulting in total social and occupational impairment. CONCLUSION OF LAW The criteria for an increased disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United Sates Army on active duty from November 2003 to April 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) dated August 2014. In November 2019, the Veteran and his representative testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. In December 2019, the Board remanded this matter for additional development and consideration. The issue has now been returned to the Board for further appellate consideration. As is further discussed below, the Board finds that there has been substantial compliance with the directives of the prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Lastly, the Board notes that the Veteran has various issues pending on appeal. Specifically, it is noted that he perfected his appeal with regards to the issue of total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU). This issue was adjudicated in a December 2018 statement of the case (SOC). See December 2018 SOC. The Veteran filed his VA Form 9, formal appeal to the Board, in March 2019. See March 2019 VA Form 9. However, the Veteran has requested a hearing on the issue of TDIU. See March 2019 VA Form 9. The Veteran has also selected the Higher-Level Review lane when he opted into the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form. See Mach 2019 RAMP opt-in. As such, this claim is currently under development at the Agency of Original Jurisdiction (AOJ) and has not yet been certified to the Board. Therefore, the Board will not address it at this time. Increased Rating The Veteran is seeking a higher rating for PTSD that he contends has worsened since his 70 percent rating, effective from August 07, 2009. Specifically, the Veteran contends that he is unable to sleep, his medication is not working anymore, and that he was admitted into Eugene J. Towbin VA hospital following suicidal ideations. See November 2019 Board Videoconference. Here, the Board notes the Veteran filed a claim for an increased rating for this disability on December 17, 2013. Therefore, the relevant temporal focus is from December 17, 2012, one year prior to the date of receipt of the claim. 38 C.F.R. § 3.400. Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 frequency, severity, 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). Under the General Formula, a 70 percent rating is assigned when there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood), and the impairment is attributable to 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. A 100 percent rating is assigned when there is total occupational and social impairment due to 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; or memory loss for names of close relatives, own occupation or own name. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, the list of examples set forth for each rating does provide guidance as to the severity of symptoms contemplated for that rating. Id. Accordingly, while each of the examples needs not be proven in any one case, the symptoms must be analyzed considering those given examples. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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 examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. Relevant Factual Evidence In August 2014, the Veteran reported to a VA psychiatric examination, where the examiner diagnosed him with PTSD. See August 2014 VA PTSD DBQ. The examiner opined the Veteran’s PTSD endorses “occupational and social impairment with reduced reliability and productivity.” Id. at p. 1. The examiner noted the Veteran currently lives with his mother, goes shooting, and attends church. However, the examiner noted the Veteran takes his sleeping medication nightly, citalopram once a week, hydroxyzine twice a week, and has only been seen for two mental health appointments in the past two and a half years. Id. at p. 3. The examiner opined the “PTSD symptoms described above cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.” Id. at 4. The examiner further opined the Veteran’s “[s]ymptoms appear to be moderate-severe.” Id. at 5. In June 2015, the Veteran was hospitalized for suicidal ideation with the intent to shoot himself with a gun in his possession. See June 2015 Little Rock VA Medical Records. In May 2017, the Veteran reported to a VA PTSD DBQ, where the examiner diagnosed the Veteran with PTSD. See May 2017 VA PTSD DBQ. The examiner noted the Veteran does not have more than one mental disorder. The examiner further noted the Veteran’s PTSD causes “[o]ccupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.” Id. at 1. The examiner noted the Veteran’s PTSD symptoms include suicidal ideations and impaired impulse control with periods of violence. The examiner noted the Veteran last worked four years ago at Pine Bluff Arsenal. The examiner opined the Veteran’s symptoms “may impair his ability to work under close supervision and around large groups of people. He is likely to have difficulty meeting deadlines and remaining on task.” Id at p. 5. At the November 2019 Board Videoconference hearing, the Veteran testified to currently be in mental health treatment at Eugen Towbin VA Medical Center. See November 2019 Board Videoconference. He testified that he feels like the PTSD caused him to “lose everything in his life.” He further testified that he does not sleep and has mood changes. The Veteran also reported to being hospitalized after bringing a gun to the hospital and expressing suicidal ideations. The Veteran expressed feelings that his PTSD symptoms are continuous and persistent and have worsened since his last VA examination. In compliance with the December 2019 Board remand, the Veteran presented to a VA PTSD DBQ in January 2020. See January 2020 VA PTSD DBQ. The Veteran was diagnosed with PTSD. The examiner noted the Veteran’s PTSD causes “[o]ccupational and social impairment with reduced reliability and productivity.” Id. 1. The examiner noted the Veteran last worked eight years earlier when he left the Pine Bluff Arsenal. The examiner noted the Veteran was in treatment in the past but dropped out of treatment from late October 2015 until late 2019. The examiner further noted the Veteran displayed no evidence of delusions or hallucinations and denied suicidal and homicidal ideations. Additionally, the examiner reviewed the Veteran’s medical file and personally interviewed the Veteran and evaluated his PTSD using the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5). The examiner opined the Veteran’s symptoms remain moderate to severe. The examiner further opined the Veteran’s “[f]unctional limitations related to PTSD symptoms include increased agitation when working closely with others which would make jobs with high levels of customer or coworker contact more difficult. Otherwise, physical and sedentary employment activities not precluded based on PTSD symptoms.” Id. at 5. Analysis Upon review of the Veteran's entire history, the Board concludes that the preponderance of the evidence is against a rating in excess of 70 percent at any time during the appeal period. Based on the aforementioned evidence, the Board finds that the Veteran’s symptomatology is not more consistent with a 100 percent rating. Notably, “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” and “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or other of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), Here, the Veteran’s symptomatology includes suicidal ideation, hallucinations, impaired impulse control with periods of violence. See June 2015 Little Rock VA Medical Records, See May 2017 VA PTSD DBQ, See January 2020 VA PTSD DBQ. The foregoing will be addressed in more detail below. As to his suicidal ideation, the Veteran was hospitalized in June 2015 for suicidal ideation with the intent to shoot himself with a gun in his possession. See June 2015 Little Rock VA Medical Records. However, this did not equate to the 100 percent level as it was not considered persistent danger of hurting himself or others as it was only one incident and from the medical evidence there is no other incident of such occurring. Also, it was noted in a May 2017 VA PTSD DBQ that the Veteran had suicidal ideations, but there was no indication that he was in persistent danger of hurting himself. Rather, it appears that this symptom is more consistent with the 70 percent, where one would endorse such ideations. Mental health treatment records from December 2019, note the Veteran presented suicidal ideations in the past month, stating “wish I would die.” See December 2019 Little-Rock VA Medical Records at p. 17. Mental health treatment records from March 2020, note the Veteran denied suicidal and homicidal ideations. See March 2020 Little-Rock VA Medical Records at p. 3. The Veteran has expressed symptoms of hallucinations. Notably, the Veteran’s instances of manifested hallucinations more approximate the finding of 70 percent rather than that of 100 percent. Specifically, mental health treatment records during inpatient treatment following his suicidal ideation, noted auditory and visual hallucinations. See July 2015 Little Rock VA Medical Records at p. 214. However, followup examinations in September and October 2015 noted the Veteran is taking medication with “benefit” and denied audiological and visual hallucinations. Id. at p. 112, 128. In March 2020, the Veteran reported auditory hallucinations “whispers.” See March 2020 Little-Rock VA Medical Records at p. 3. However, the December 2020 VA PTSD DBQ, examiner noted the Veteran displayed no evidence of delusions or hallucinations. See January 2020 VA PTSD DBQ. Further review of the Veteran’s claims file does not reveal further instances of reported hallucinations. Essentially, the Board does not find that the hallucinations rise to the level of persistent where they are not consistent. The May 2017 VA examiner noted the Veteran’s PTSD symptoms to include impaired impulse control with periods of violence. See May 2017 VA PTSD DBQ. However, the December 2019 VA examiner noted the Veteran denied homicidal ideations. See January 2020 VA PTSD DBQ. Additionally, the December 2020 VA examiner, noted the Veteran denied homicidal ideations. See January 2020 VA PTSD DBQ. Again, Veteran’s impaired impulse control with periods of violence more approximate the finding of 70 percent rather than that of 100 percent. As such, to warrant an increased rating, the evidence must show that the Veteran's symptoms more nearly approximate a rating of 100 percent at some point during the appeal period. See 38 C.F.R. § 4.7. A 100 percent rating is assigned when there is total occupational and social impairment due to 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; or memory loss for names of close relatives, own occupation or own name. Specifically, the January 2020 VA medical examiner opined the Veteran is capable of “physical and sedentary employment activities not precluded based on PTSD symptoms.” See January 2020 VA PTSD DBQ. The claims file also contains the VA mental health treatment records dated throughout the pendency of this appeal. The treatment records are reflective of the symptoms already discussed concerning the severity of the Veteran’s PTSD in his VA examination reports. However, these records do not contain any indication that the Veteran suffers from more severe or different symptoms than those noted above in the examination reports. See June 2015 Little Rock VA Medical Records. The Board has not overlooked the Veteran’s lay statements found in the record. See November 2019 Board Videoconference. In this regard, the Veteran is credible to report on what he has seen and how he acts and feels. The Veteran is also certainly competent to report how he believes his PTSD has affected his life, including describing his symptoms. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, the Board finds more competent and credible the medical opinions provided by the VA examiners as discussed above, in rendering a decision as to the severity of the Veteran’s PTSD based on the totality of the evidence, and the observable symptoms as demonstrated in clinical treatment notes and his several VA examinations conducted throughout the appeal period, which, as the Board notes, does consider his lay statements. Following a review of the lay and medical evidence, the Board concludes that the Veteran’s PTSD is productive of the currently assigned criteria for a 70 percent rating. In reaching this determination, the Board finds his PTSD has been manifested by occupational and social impairment with deficiencies in most areas due to depressed mood, anxiety, chronic sleep impairment, flattened affect, impaired judgment, 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, agitation, mood swings, anger control issues, paranoia, nightmares, and flashbacks. These symptoms have been consistently reported by the Veteran throughout the pendency of his appeal. See August 2014 VA PTSD DBQ; May 2017 VA PTSD DBQ; January 2020 VA PTSD DBQ. Overall, even the occupational and social impairment does not meet total occupational impairment, where the examiners have only described at best only deficiencies in most areas, which is reflected in the January 2020 examination. The examiner opined the Veteran’s “[f]unctional limitations related to PTSD symptoms include increased agitation when working closely with others which would make jobs with high levels of customer or coworker contact more difficult. Otherwise, physical and sedentary employment activities not precluded based on PTSD symptoms.” See January 2020 VA PTSD DBQ at 5. The Board finds that the preponderance of the evidence is against an evaluation in excess of 70 percent since the symptoms or the effects of the symptoms set out for these levels of impairment are absent from the record during the appeal period. The evidence does not show that the Veteran has total occupational and social impairment. See January 2020 VA PTSD DBQ. The Veteran has never attested to suffering from gross impairment in thought processes or communication, grossly inappropriate behavior, disorientation to time or place, or suffering from memory loss for names of close relatives, own occupation, or own name. In fact, to the contrary, the record is entirely devoid of these symptoms as is required for the higher 100 percent ratings. See again August 2014 VA PTSD DBQ; May 2017 VA PTSD DBQ; January 2020 VA PTSD DBQ. (Continued on the next page)   As a preponderance of the evidence is against the award of an increased rating in excess of 70 percent, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David B. Scheirich, 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.