Citation Nr: 21024978 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-46 550 DATE: April 27, 2021 ORDER Entitlement to a disability rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT For the entire rating period on appeal, the Veteran’s PTSD does not more nearly approximate total occupational and social impairment. CONCLUSION OF LAW For the entire rating period on appeal, the criteria for a rating higher than 70 percent for PTSD are not met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code (DC) 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to June 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board remanded claims for PTSD and a total disability rating based on individual unemployability (TDIU) for further development. In August 2020, the RO granted the claim for a TDIU from June 2013, thus, the entire period on appeal. Increased Rating Claim The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula (General Rating Formula) for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula, a 70 percent rating is warranted if the evidence establishes 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); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating (total occupational and social impairment) is warranted 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. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). 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, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. 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. The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA’s general Rating Formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating; however, the Court further indicated that, without those examples, differentiating between rating evaluations would be extremely ambiguous. When it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant’s favor and the symptoms in question must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014. This specific appeal regarding increased rating for PTSD was certified to the Board after August 2014, and as such, the DSM-5 applies, and based upon the Court's holding in Golden, the Board will place no reliance on GAF scores for rating this Veteran's PTSD. For the reasons expressed below, the Board finds that the criteria for a rating higher than 70 percent are not met. Turning to the evidence, in April 2014, the Veteran underwent a VA PTSD examination, at which time the examiner confirmed a diagnosis of PTSD. In terms of social impairment, the examiner noted that the Veteran was married and had five children and many grandchildren. In this regard, the Veteran indicated that he was unable to show affection to any of his family, had no friends, and was socially isolated. In terms of occupational impairment, he had been at his job since August 1998 but stopped working in July 2013 because he was becoming forgetful and increasingly irritable. During the day, he stayed home watching television. He had few leisure interests and was often fearful and hypervigilant. On mental status examination, the examiner identified PTSD symptoms of anxiety; depressed mood; panic attacks occurring weekly or less often; chronic sleep impairment; and, difficulty in adapting to stressful circumstances, including work or worklike setting. The examiner noted that the Veteran’s memory was within normal limits based on testing and not directly related to his PTSD. The examiner concluded that the Veteran was not unemployable based solely on the level of his PTSD symptoms. He reasoned that the Veteran’s level of PTSD symptoms did not appear to have increased since an evaluation two years earlier, and that he had continued working for a year following that examination. Based on clinical testing, he indicated that the Veteran’s tendency to over-report symptoms suggested that his current level of PTSD had not changed since the initial evaluation. The examiner concluded that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. According to VA treatment records dated from 2012 to 2018, the Veteran was casually dressed, with congruent and euthymic affect and mood varied. The Veteran denied hallucinations, delusions, and suicidal or homicidal ideation. He was fully oriented with voiced insight and fair judgment. In 2014, he attended a session of PTSD symptom management groups which helped improve symptoms. He did occasionally report nightmares and difficulty sleeping. In correspondence from the Veteran dated June 2014 and in his December 2015 substantive appeal, he contends that his PTSD symptoms reflect total and occupational impairment as his symptoms have increased and that a short examination did not reflect what it is like for him to relive his horrifying experiences from Vietnam. He stated that he had to quit his job due to the increase in severity of his PTSD symptoms and that his memory loss is due to his PTSD. In November 2018, the Veteran submitted a lay statement from his spouse. She stated that he had one friend, that he didn’t like being with his family, and that he could not sleep at night even with prescribed medication due to fear of flashbacks and nightmares from Vietnam. In December 2019, the Veteran underwent a VA examination for PTSD, at which time the examiner confirmed a diagnosis for PTSD. In terms of social impairment, the examiner noted the Veteran lived with his wife with children living out of state. He stated that they occasionally had family members for holiday visits. He had not had contact with his own family who lived out of state for five years. He and his wife liked to go out for dinner and go camping. In terms of occupational impairment, the examiner noted that the Veteran had retired in July 2013 and spent time at home doing chores, watching television, reading camping magazines and walking the dog. The Veteran reported some transient suicidal ideation but that he would go somewhere quiet until the thoughts passed. On mental status examination, the examiner noted that the Veteran was dressed in clean clothing and had good hygiene; was cooperative; made adequate eye contact; speech was clear and understandable; affect appropriate; fully oriented; normal thought processes; and denied delusions, suicidal or homicidal ideation or intent. Memory was within normal limits. He had insight and adequate judgment. The examiner identified PTSD symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a worklike setting. He indicated that the Veteran’s PTSD caused clinically significant distress or impairment in social, occupational, or other important areas of functioning and concluded that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In VA outpatient records dated in 2019, the Veteran occasionally raised suicidal thoughts. In November 2019, the psychiatrist noted that he was dressed casually with good hygiene, fully oriented and had blunted affect. He endorsed suicidal thoughts but denied intentions or plans to harm himself. He had no hallucinations, delusions, or paranoia. His insight and judgment were good. The examiner noted that he was a low risk of suicide due to a supportive wife and he was dedicated to his grandchildren. In August 2020, the RO granted the claim for TDIU for the entire rating period on appeal and assigned an effective date from the day after the Veteran stopped working in July 2013. On review of all the evidence, the Board finds that a rating higher than 70 percent is not warranted. The Veteran’s PTSD is not shown to result in both total social and occupational impairment. The Board recognizes that the Veteran's PTSD has impacted his ability to work, and as noted above, entitlement to a TDIU was granted, in part, due to his PTSD. Aside from such impairment, he has been found capable of managing his own financial affairs and appeared fully oriented throughout the pendency of the appeal. On mental status examinations, the Veteran's thought process, communication, attention, and concentration have been described as appropriate. He presented to his appointments adequately dressed and groomed. Moreover, there is no evidence of any delusions or hallucinations during the pendency of the appeal. While suicidal ideation was noted on some outpatient notes and at the 2019 VA examination, the Veteran stated they would only occur a few times and year and examiners noted that he was at low risk for self-harm. In any event, suicidal ideation is contemplated by the already assigned 70 percent rating. His memory loss has consistently been within normal limits. Although the Veteran is shown to have some difficulty in maintaining social relationships due to his PTSD, total social impairment is not demonstrated. As discussed above, despite some difficulties, the Veteran has continued to maintain relationships with some family members, cares about his grandchildren, and likes to go out with his spouse to eat, camp, and take walks with his dog. Total occupational and social impairment generally requires symptoms severe enough to severely distort the individual's perception of reality, which is not shown by the record. Overall, the Veteran's psychiatric symptoms do not equate in severity, frequency, or duration to total occupational and social impairment, nor have the symptoms demonstrated a level of severity in symptomatology to approximate or equate to that in the symptoms listed for a 100 percent rating. Additionally, the identified PTSD symptoms of depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; and difficulty in adapting to stressful circumstances, including work or a worklike setting; and suicidal ideation, are properly contemplated by the currently assigned 70 percent disability rating. Accordingly, the Board concludes that a rating higher than 70 percent for PTSD is not warranted under DC 9411. (Continued on the next page)   As a preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Beach, 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.