Citation Nr: 21024456 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-13 727 DATE: April 22, 2021 ORDER A rating of 70 percent, but no higher, prior to April 23, 2019, for posttraumatic stress disorder (PTSD) with borderline personality disorder is granted, subject to the regulations governing the payment of monetary awards. A rating in excess of 70 percent from April 23, 2019, for PTSD with borderline personality disorder is denied. FINDING OF FACT For the entirety of the appeal period, the severity, frequency, and duration of the symptoms associated with the Veteran’s PTSD with borderline personality has been manifested by occupational and social impairment, with deficiencies in most areas; total occupational and social impairment has not been shown. CONCLUSIONS OF LAW 1. For the period prior to April 23, 2019, the criteria for a disability rating of 70 percent, but no higher, for PTSD with borderline personality disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. For the period from April 23, 2019, the criteria for a disability rating in excess of 70 percent for PTSD with borderline personality disorder 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 9411. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 1990 to December 1991. This claim comes before the Board of Veterans’ Appeals (Board) from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran initially requested a Board hearing in her VA Form 9. However, in a September 2019 statement, she withdrew her hearing request. In January 2020, the Board remanded this case for additional development. Increased Rating 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran's PTSD with borderline personality disorder, like all psychiatric disorders, is rated under the General Rating Formula for Mental Disorders. Under the General Rating Formula, a rating of 50 percent is warranted for a mental disorder that results in 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. 38 C.F.R. § 4.130. A rating of 70 percent is warranted for a mental disorder that results in 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 inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when the condition results 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. Id. 1. Entitlement to higher ratings for PTSD with borderline personality disorder. The Veteran’s PTSD with borderline personality disorder is currently assigned a 50 percent rating prior to April 23, 2019, and a 70 percent rating from that date. She asserts higher ratings are warranted. In November 2009, the Veteran underwent a VA examination to evaluate her mental health disorders. The examiner noted that the Veteran evidenced significant problems in psychosocial functioning. Specifically, he noted that while the Veteran had good relationships with her siblings and parents, she tended to avoid people that were not members of her immediate family. Additionally, the examiner noted that the Veteran had difficulty controlling her anger, which she indicated was another reason that she avoided people. In this regard, the Veteran reported that she was physically violent with someone on one occasion in 1993. The Veteran denied substance abuse but reported that she had used a variety of substances heavily (alcohol, crystal meth, LSD) from the time of her service separation until about 10 years prior to the examination. Since her separation from the military, the Veteran reported that she had experienced difficulties in social situations. In particular, she reported feeling anxious around people, experiencing intense mood swings, and stated that she felt angry a lot. She stated she did not know where the anger came from, but she had a short fuse that she did not used to have. The Veteran reported that she felt down about 80 percent of the time, and that her feelings of irritability usually coincided with feeling down. Additionally, she reported that she continued to have difficulty controlling her temper, although it was not as bad as it used to be. The examiner noted that the Veteran had symptoms of anhedonia. Specifically, the Veteran said that while she previously enjoyed engaging in a number of activities, she no longer felt like leaving the house. Furthermore, the Veteran indicated that while there were days when she would clean everything in her house, there were other days that she would completely neglect household chores. Similarly, she endorsed variability in eating habits, which alternated between starving herself and stress eating. The Veteran also reported sleep disturbances, noting that she usually took something every night to fall asleep, but that most nights she woke up frequently. She told the examiner that she used to hate herself, but she no longer did and thought of herself as a valuable person. The Veteran indicated that her ability to concentrate varied and noted that sometimes she lacked focus but at other times she could focus for long periods of time. She denied any suicidal ideation. The examiner noted that the Veteran was clean, neatly groomed and appropriately dressed. Additionally, he found her speech to be unremarkable, spontaneous, clear, and coherent. The Veteran reported panic attacks that occurred roughly 20 times a year, which normally occurred when she was in a crowded setting or feeling very stressed out. In the two weeks prior to the examination, the Veteran experienced severe symptoms of changes in sleeping patterns and irritability. Moderate symptoms of punishment feelings, self-criticalness, agitation, loss of interest, indecisiveness, worthlessness, loss of energy, changes in appetite, and concentration difficulties. Mild symptoms of sadness, past failure, loss of pleasure, guilty feelings, crying, loss of interest in sex, tiredness or fatigue were also noted. At the time of the examination, the Veteran was employed full-time at a chemical plant and had worked there for 2 to 5 years; however, she reported problems getting along with several coworkers that ultimately led to her suspension from work for 15 days. Ultimately, the examiner diagnosed the Veteran with anxiety disorder and noted that the Veteran’s symptoms of anxiety and depression were clinically significant but did not meet the criteria for a specific mood disorder. Additionally, the examiner noted that the Veteran suffered a military sexual trauma in May 1990. See November 2009 VA Examination. In a statement received in March 2014, the Veteran’s sister, A.S., described the Veteran’s psychiatric troubles. In the letter, she noted that prior to joining the army the Veteran was quite social, loved art, and had confidence. Following service, A.S. reported that the Veteran was not the same. Specifically, A.S. claimed that the Veteran did not want to go anywhere or do anything, and no longer did any art. A.S. reported that the Veteran was “jumpy”, did not want to get dressed, and had panic attacks. Additionally, A.S. wrote that the Veteran had a short fuse and began drinking a lot. A.S. reported that she helped the Veteran find an apartment, but that when she would visit it was a mess. Additionally, she reported noticing cuts on the Veteran’s left arm “quite a bit.” When she asked the Veteran about the cuts, the Veteran would get “real mad”. When she saw the Veteran, she noted that it seemed that the Veteran was either in a crisis, or she did not have any emotion, as if she was numb. A.S. also reported that the Veteran did not attend many family events over the years, and that when she tried dating, it did more harm than good. A.S. noted that the Veteran was fired from a job in 2013 because she “kept messing up” and did not get along with people. Furthermore, A.S. wrote that she felt that it was only a matter of time before the Veteran was fired again. A.S. concluded her statement noting that, “[the Veteran] wanted so bad to serve her country and after she did… she came back broken.” See Buddy/Lay Statement received March 2014. In a statement received in March 2014, the Veteran’s mother, J.F., described the Veteran’s symptomatology. Specifically, J.F. wrote that after the Veteran returned from the Army, she had mood swings, pessimistic behavior and a foul mouth. J.F. noted that the Veteran used to have hobbies and paint things, but she no longer did. Further, J.F. stated that she believed that the Veteran had a hard time functioning and getting along with other people. To that end, J.F. noted that the Veteran was more compassionate about animals than humans. See Buddy/Lay statement received March 2014. In another statement received in March 2014, the Veteran’s former best friend, A.D., described the Veteran’s psychiatric troubles. The statement described the Veteran in high school as someone who was a talented and passionate artist. Furthermore, A.D. noted that after the military, the Veteran was not the same person anymore. Specifically, she indicated that the Veteran could not take a joke, that her hands shook, and that she had a “stare” that she did not before. Additionally, A.D. noted that on one occasion, her husband snuck up on the Veteran, which resulted in the Veteran hitting him. A.D. concluded that the only time the Veteran came alive was when she talked about her cats. See Buddy/ Lay Statement received March 2014. In April 2014, the Veteran underwent another VA examination. The examiner diagnosed PTSD and noted that the Veteran’s previous diagnosis had progressed. In addition to diagnosing PTSD, the examiner also diagnosed the Veteran with obsessive-compulsive disorder (OCD). Due to her PTSD, the examiner opined that the Veteran experienced recurrent, involuntary, and intrusive distressing memories of the traumatic event; recurrent distressing dreams in which the content and/or effect of the dream were related to traumatic event; intense or prolonged psychological distress at exposure to internal or external cues that symbolized or resembled an aspect of the traumatic events; and marked physiological reactions to internal or external cues that symbolized or resembled an aspect of the traumatic events. Additionally, the Veteran engaged in persistent avoidance of stimuli associated with the traumatic events, beginning after the traumatic events occurred, as evidenced by: avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event; avoidance or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that aroused distressing memories, thoughts, or feelings about or closely associated with the traumatic events. Negative alterations in cognitions and mood associated with the traumatic event, beginning or worsening after the traumatic event, was evidenced by: inability to remember an important aspect of the traumatic event; persistent and exaggerated negative beliefs or expectations about oneself, others or the world; persistent distorted cognitions about the cause or consequences of the traumatic event that led to the individual to blame herself or others; persistent negative emotional state; feelings of detachment or estrangement from others; persistent inability to experience positive emotions. Marked alterations in arousal and reactivity associated with the traumatic event, beginning or worsening after the traumatic event occurred was evidenced by hypervigilance; exaggerated response; sleep disturbance. Finally, the disturbance was found to cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Additionally, symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and obsessional rituals which interfere with routine activities were noted. The examiner noted that the Veteran was clean, neatly groomed and appropriately dressed. Additionally, the examiner opined that the Veteran was capable of managing her financial affairs. The Veteran reported that she had had suicidal thoughts, that came and went in waves depending on what was going on in her life. Additionally, she was noted to have obsessed about beating up an old supervisor. She also noted that she exhibited instances of violent behavior towards others. The examiner noted that the Veteran engaged in self-harm consisting of cutting herself, as recently as two weeks prior to the examination. Ultimately, the examiner opined that the Veteran’s behavior was best characterized as occupational and social impairment with reduced reliability and productivity. See April 2014 VA Examination. In January 2015, the Veteran submitted a statement in support of claim, in which she alleged that she initially sought treatment in October 2009 because she felt as if she was going to have a nervous breakdown and kill herself. Additionally, she claimed that due to her aggression and anxiety related to work, she was unable to maintain a job. Finally, the Veteran noted that she had never been able to maintain a relationship that lasted more than a few months. See January 2015 Statement in Support of Claim. In a lay statement received in February 2015, a former classmate and coworker of the Veteran, A.F., indicated that the Veteran worked with him in 1993, after the Veteran was separated from the military. A.F. noted that the Veteran was “like a sister” to him before the Veteran joined the Army, but after she got out, she was a “complete stranger.” He noted that she was angry, bitter, and trusted no one. See Buddy/Lay Statement received February 2015. In June 2015, the Veteran submitted another statement in support of claim, wherein she indicated that she had recently been terminated from her job. Additionally, she indicated that she believed the more counseling that she participated in, the more problems she ran into with her employer. The Veteran concluded the statement noting that she believed that her PTSD was the main reason that she could not hold down a full-time job. See June 2015 Statement in Support of Claim. In April 2018, the Veteran underwent a VA psychological evaluation consult. The Veteran reported a tense and anxious mood, with some ruminative thinking and obsessive-compulsive checking behavior. The examiner noted that the Veteran displayed a clear tendency for “splitting”, which was described as either feeling completely positive or completely negative about a person/situation/event, with no ability to appreciate pros and cons concurrently. Furthermore, the examiner opined that this was evidenced in both her personal and professional life. Ultimately, the examiner diagnosed the Veteran with borderline personality disorder, recurrent major depressive disorder, attention deficit hyperactivity disorder (ADHD), and PTSD. See VA Treatment Record received March 2019. Most recently, in April 2019, the Veteran underwent a VA examination to evaluate her PTSD and borderline personality disorder. The examiner noted that due to the Veteran’s borderline personality disorder, she experienced symptoms consisting of: suicidal behavior/ self-injury; affective instability due to a marked reactivity of mood to include irritability or anxiety; chronic feelings of emptiness; inappropriate and intense anger to include displays of temper; transient, stress-related paranoid ideation and suspiciousness; anxiety; suspiciousness; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The examiner opined that the symptoms attributable to the Veteran’s PTSD were depression, anxiety, and sleep disturbance. The Veteran reported living at a home that she owned with her five cats. Additionally, she noted that she had not dated since her previous VA examination and stated that, “weird feelings come up… I don’t want them to touch me.” She also indicated that she had felt this way since experiencing a military sexual trauma in 1990. The Veteran reported knowing that she had an anger problem and did not see her family very often as a result. She related maintaining no close friendships and enjoyed spending time with her cats; however, she indicated that she had a presence on Facebook, but this was because she liked and was involved in different art groups. The Veteran denied any involvement in clubs, church, or Veterans organizations. However, she did not indicate any impairment of activities of daily living. For an occupation, the Veteran reported working for the Army Corps of Engineers as an administrative assistant. The Veteran reported sleep problems, for which she reported taking four Benadryl every night before going to bed. Additionally, she stated that she had some nightmares, which were more prevalent during certain times of the year. Due to her sleep disturbances, the Veteran estimated obtaining about four hours of sleep per night. She reported experiencing panic attacks 15 to 20 times a month, which were characterized by symptoms of an inability to breathe and feelings akin to those of a heart attack. The Veteran denied homicidal and suicidal ideation, but noted in 2014 she was frustrated about employment and “sat with a gun in her mouth.” She also reported a history of violent behavior, noting that she hit a coworker and blackened his eye in 2014. Due to the symptoms noted, the examiner opined that the Veteran’s level of occupational and social impairment was best described as occupational and social impairment with occasional decrease in efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care and conversation. See April 2019 VA Examination. In June 2019, the Veteran participated in a Decision Review Officer (DRO) hearing in which she reported that she had been in therapy for 12 years and just wanted to be normal. Additionally, she indicated that she had been fired from four jobs and was being moved to a new department at her job for not getting along with fellow employees. She also noted that she had physically hit people, avoided crowds, and had trouble remembering. Finally, she stated that she was popular in high school and did not have trouble getting along with people until after the military. See July 2019 DRO Hearing Transcript. In correspondence received in October 2019, the Veteran argued that a rating in excess of 50 percent was warranted for her service-connected PTSD. Specifically, she alleged that, due to her condition, she was unable to remember to pay her bills and to do her laundry. Additionally, she detailed experiencing suicidal ideations, noting that, “I have sat with a gun in my mouth and a razor blade to my wrist.” Furthermore, she indicated that the more she was around people, the more she fantasized about committing suicide. The Veteran related that, “if I tell people how much I want out of this world, they will put me in a psych ward.” She also detailed her obsessive rituals, presumably associated with her OCD; however, the Board notes that the Veteran is not service-connected for OCD and therefore it may not be considered in the determination of whether a higher rating is warranted for PTSD. The Veteran detailed that people tell her that she does not make sense, and as a result she often has to repeat herself, which causes her anger. She noted that certain sounds remind her of Saudi Arabia and cause her to have panic attacks. Furthermore, she stated that her anxiety was so bad that she could not attend her niece’s wedding because after walking in and seeing the crowd of people in attendance, she had to run outside and could not breathe. Due to her panic and depression, the Veteran stated that some days she cannot get out of bed and lives in isolation as she only feels safe at home. The Veteran reported neglecting personal hygiene and household chores, stating that she did not shower or get dressed on days that she does not leave her house, and that her mom and sister often complained about how unorganized her home was. The Veteran indicated extreme difficulty in adapting to stressful events, noting that simple tasks such as choosing paint for her walls, or replacing a refrigerator caused her intense panic and anger. She reported that since serving in the military she had not had a stable relationship. She stated that when she saw old classmates’ family pictures on Facebook, she gets so jealous that she hated them and wanted something bad to happen to them. The Veteran also reported having thoughts of wanting to harm a past coworker who harassed her, and stated that she had fantasies of “shooting [the coworker] sniper style.” According to the Veteran, the only time she felt peace was when she was unemployed for six months and did not have to be around people. The Veteran concluded the statement by noting that she was struggling very badly and needed to find a way to not have to leave home so that she could be around her animals that made her feel better. See October 2019 Correspondence. In August 2020, VA produced a clarifying medical opinion indicating that the Veteran’s borderline personality disorder was aggravated by her documented military sexual trauma, and that it was at least as likely as not that the Veteran’s service-connected PTSD was superimposed on her borderline personality disorder. See August 2020 VA Medical Opinion. Based on this finding, the RO issued an August 2020 rating decision, which held that the symptoms for both PTSD and borderline personality disorder may be considered in determining the severity of the Veteran’s disability. Additionally, the rating decision found that an increased rating of 70 percent was warranted from April 23, 2019. See August 2020 Rating Decision. VA treatment records throughout the appeal period document the Veteran’s continued reports of experiencing psychiatric symptoms such as depression, anxiety, panic attacks, impaired judgment, and disturbances of motivation and mood. Additionally, the Board notes that while the record indicates that the Veteran attempted suicide in 2009, suicide risk was consistently found to be non-imminent throughout the VA treatment records. Based on the foregoing evidence, the Board finds that, for the period prior to April 23, 2019, a rating of 70 percent, but no higher, is warranted for the Veteran’s service-connected PTSD. In pertinent part, the Veteran demonstrated occupational and social impairment, with deficiencies in most areas. This was characterized by profound difficulties in personal relationships in the workplace, socially, and within the Veteran’s family. Additionally, the Veteran reported being fired from numerous jobs, not leaving bed for days, intense mood swings, persistent negative emotional state, intermittently illogical speech, neglect of hygiene, feelings of detachment and estrangement from others, angry outbursts, and instances of violence. Finally, the Veteran reported fantasizing about killing herself and wanting to harm others. Accordingly, for the period prior to April 23, 2019, the Board finds that a 70 percent rating is warranted. Mauerhan, 16 Vet. App.at 443. The Board further finds that a higher 100 percent rating is not warranted for any point during the appeal period. In pertinent part, the Veteran’s PTSD has not demonstrated symptomatology reflective of total occupational and social impairment. The Veteran has not exhibited gross impairment in thought processes or communication; grossly inappropriate behavior; intermittent inability to perform activities of daily living; disorientation of time of place; memory loss for names of close relatives, own occupation, or own name; or other symptoms approximating the 100 percent schedular rating. The Board does not deny that the Veteran’s PTSD impacts her ability to work. Nevertheless, the evidence does not show that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration that cause occupational or social impairment equivalent to the 100 percent disability rating. Mauerhan, 16 Vet. App.at 443. The Board also acknowledges that the Veteran has difficulty getting along with others at work, has experienced suicidal thoughts and thoughts of harming others, and has difficulty adapting to stressful situations. However, the record also shows that she is employed, lives independently, and maintains a relationship with her family. She is also not shown to have been in persistent danger of hurting herself or others. This evidence is not indicative of total occupational and social impairment. Accordingly, the Board finds that the criteria for a 100 percent rating have not been met at any point during the appeal period. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talton, John H. 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.