Citation Nr: 21029239 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-32 749 DATE: May 13, 2021 ORDER An increased disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to July 23, 2018 is denied. FINDING OF FACT Throughout the entire period on appeal, the symptoms and overall impairment caused by the Veteran's service-connected psychiatric disability have more nearly approximated occupational and social impairment with reduced reliability and productivity, but have not more nearly approximated occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for the assignment of a disability rating in excess of 70 percent prior to July 23, 2018 for the service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to July 1968 and from August 1985 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Augusta, Maine, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2016 the Veteran filed a notice of disagreement (NOD) and a substantive appeal via a VA Form 9 in June 2017. In September 2017 the Board remanded the claim for further development. In December 2017, the RO increased the evaluation of PTSD, then rated as 10 percent disabling, to 70 percent effective September 28, 2017. In a December 2018 rating decision, the RO increased the evaluation of PTSD from 70 percent to 100 percent, effective July 23, 2018. In the November 2020 Board remand, it was noted that when the RO increased the disability rating to 70 percent for PTSD, they also issued a supplemental statement of the case (SSOC) that did not address the period on appeal prior to September 28, 2017. The RO was instructed to readjudicate the issue. Subsequently, in a March 2021 rating decision, the RO granted a 70 percent disability rating effective July 15, 2015, the date VA received his claim for an increase. Accordingly, as a 100 percent rating is in effect for the service-connected PTSD from July 23, 2018, the only remaining issue in appellate status is entitlement to a rating in excess of 70 percent for the service-connected PTSD from July 15, 2015 through July 22, 2018. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. 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 of adjustment during periods of remission. 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. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also 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). Entitlement to an increased disability rating in excess of 70 percent for PTSD prior to July 23, 2018 The Veteran contends that the symptoms of his psychiatric disability warrant an increased disability rating. His PTSD is currently rated as 70 percent disabling from July 15, 2015 (the date of the claim) to July 23, 2018; thereafter the PTSD is rated as 100 percent disabling under the General Rating for Mental Disorders at 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under the General Rating Formula for rating mental disorders, a 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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 evidence of 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 and place; memory loss for names of close relatives, own occupation or name. Id. When determining the appropriate disability rating to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 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 ward a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-24 (Fed. Cir. 2004). 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 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. An April 2015 VA examination report reflects that the examiner noted that there is clear and unmistakable evidence from multiple sources of intentional feigning of cognitive impairment and psychiatric symptom exaggeration/amplification in an attempt to appear more psychiatrically and functionally disturbed than reasonably possible. He reported that the Veteran's problematic evaluation behavior was observed in the context of a forensic evaluation in which secondary gains are a significant motivator and the pattern of exaggeration and feigned deficit is so great that is reasonable to ascribe the evaluation difficulties to malingering behavior on the Veteran's part. He noted discrepancies between the Veteran's prior evaluations. For example, the Veteran was assigned a 10 percent evaluation even though he did not have a diagnosed mental disorder; however, he took anxiety medication and had insomnia which was explainable by his overnight job. Additionally, he addressed a November 2012 evaluation from a psychological counselor and questioned whether it was based on sufficient facts or data; reliable principles and methods; the application of these; and assessment methods. He concluded that the Veteran did not meet the DSM-5 diagnosis of PTSD, depressive disorder, or anxiety disorder and the Veteran was actively attempting to appear more psychiatrically and functionally disturbed than is reasonably possible. During the examination, the Veteran reported that he was divorced and living by himself since 1992. He had been married three times and had three children. He kept in contact with his daughter frequently. He denied notable activities or interests outside of his work. He reported that his social isolation is somewhat self-imposed as he is afraid of "snapping at people," particularly his young grandchildren. He reported that his basic and advanced independent activities of daily living were met without need or assistance and he drove independently. The Veteran is a high school graduate and continued to be employed full-time as a security guard. He worked an overnight shift twice a week. He denied any significant problems with his work performance or management issues. On examination, he was appropriately groomed; cooperative, but suspicious and guarded; fully oriented; had an adequate fund of remote and recent autobiographical detail and current even knowledge; psychomotor restlessness/anxiety; unremarkable speech; anxious mood; normal/appropriate affect; and unremarkable thought process and content. He denied homicidal or suicidal ideation, visual hallucinations, auditory hallucinations, and delusions. He had appropriate insight, judgement, abstract thinking, and intelligence. He complained of attention, concentration, and memory issues, but it was reasonably impossible to substantiate given his feigned cognitive deficit issues. An August 2015 Disability Benefits Questionnaire (DBQ) report from a private psychologist reflects that the examiner noted that the Veteran does have a diagnosis of PTSD. He found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner noted that the Veteran had been married three times and had reported alcohol use. The Veteran reported that a "bad attitude" and "running over" wives caused his marital problems. He reported that he had difficulty getting along with others at work. He reported that he drank regularly over 20 years but quit drinking in 1995. Symptoms of his PTSD were noted as depressed mood; suspiciousness; anxiety; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; flattened affect; impaired judgment; impaired abstract thinking; 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; inability to establish maintain effective relationships; and impaired impulse control, such as unprovoked irritability with periods of violence. He was capable of managing his financial affairs. A November 2015 VA examination report reflects that the examiner found that the Veteran did not have a mental disorder diagnosed. He reported that he stayed in touch with his daughter and one other son who called him occasionally. He was not in contact with one other son. He reported that he spoke with one of his brothers for support. He reported that he has no friends and no social activities. He reported nightmares. The Veteran was still working in security with no significant changes in his work since his last examination in April 2015. He reported that he spent time alone when he was on the job because he does not trust others. He reported that the performance of his job duties is stable, and he has no problems getting his work done. He reported that the people at work complain about his irritability. The examiner noted that although there are significant concerns related to amplification/exaggeration of symptoms based on psychological testing results, the following are the Veteran's self-report of mental health symptoms: intrusion symptoms described as the same dream every night and flashbacks two to three times a week; avoidance symptoms described as avoiding car accidents, gunshots, fights, violence, and large groups of people; negative alterations in cognitions and mood described as not feeling close to anybody but his daughter and brother and that he could experience joy if he is alone; marked alterations in arousal and reactivity described as irritability, sleep disturbance, inability to focus for too long, and startle response; depressed mood; anhedonia; loss of appetite; difficulty focusing; suicidal ideation described as passive; easily frustrated, short tempered, and angry; and panic attacks that occurred one to two times a week. The Veteran was open and cooperative during the interview and testing. He presented with good hygiene, grooming, and was appropriately dressed. His speech and gross motor functioning were within normal limits. He was alert, attentive, and fully oriented. His memory was intact and he presented with abstract reasoning. His thought processes were logical and organized and there was no evidence of delusional though content or perceptual disturbances. He described his current mood as "bad mood" and presented with a mildly irritable affect. He denied any recent suicidal ideations or intentions. He was capable of managing his own financial affairs. The Veteran reported that he was unable to read a test item and on clarification, he reported that he has never been able to read. However, this was noted as inconsistent with his participation in his past examinations. The Veteran scored well above the suggested cutoff for feigning psychopathology and the examiner fond that he had a tendency toward reporting psychiatric symptoms that he may not be experiencing. The examiner found that the Veteran's current diagnosis was malingering and that the results of this examination was consistent with the April 23, 2014 VA examination. He reported that most diagnoses of PTSD given for this Veteran were not supported by psychological testing data. Furthermore, he found that the Veteran's report of serious mental health symptoms are inconsistent with his observed behavior and ability to sustain employment for the past seven years. He noted that when administered a survey that did not require reading, the same results were produced, i.e., suggestive of feigning psychopathology. He concluded that overall, it is difficult to assess the veracity of his reported psychiatric/mental health symptoms in the context of a well-documented history of symptom amplification/exaggeration and the probable malingering on multiple survey/tests bases on both current and past testing. A September 2017 DBQ report reflects that the Veteran had a diagnosis of PTSD. The examiner found that he had occupational and social impairment with reduced reliability and productivity. He reported that he was still close to his daughter who helped him. He also reported that he was not a "good reader" which affected his job performance. He reported that his symptoms affected his job performance but could not give a specific example. He reported that he experienced nightmares every night, "not good" mood, and thoughts of suicide. He denied any legal issues. He denied any major issues at his job. He reported that he would like to sleep better and socialize/meet a woman and he reported no concern about how his work functioning is affected. He did not report any specific examples of how his nightmares and impaired sleep affects his work performance. He seemed to be able to work 12 hours shifts with no major performance issues. The examiner noted that the Veteran seemed most concerned about his sleep; however, he found it is likely that his difficulty sleeping is a real issue for him and that he may be reporting additional symptoms of PTSD for secondary gain. He reported that findings in their totality reveal that per the Veteran's claim, he was exposed to a situation that was traumatic that resulted in the current diagnosis. However, he found that symptom severity reported by the Veteran is not consistent with MER or per his reported functioning. The symptoms for his diagnosis were noted as depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and inability to establish and maintain effective relationships. In a coinciding medical opinion, the examiner reported that the April and November 2015 records were reviewed. He found that consistent with their reports, it seemed that the Veteran was giving purposeful information to make himself look as if he were not malingering. The Veteran reported difficulty in reading since childhood but reported no difficulty in doing his jobs in the military or currently. He endorsed symptoms but could not give specific examples. He stated that given that anyone can look up symptoms of PTSD, it is not difficult for anyone to endorse symptoms. The main indicator of possible overexaggerating his symptoms is that he is working 12 hours shifts with no reported difficulty. He reported that while people with PTSD can work long hours, they often report that they are "just keeping it together" or they feel significant irritability or anger, especially if they have to interact with other people. In an October 2017 statement, the Veteran reported that his symptoms were consistent with that of a 70 percent evaluation for PTSD and referred to the August 2015 examination and the 2017 DBQ reports which he said showed occupational and social impairment with deficiencies in most areas. VA treatment records were reviewed in connection of the claim were the Veteran consistently complained of insomnia. Upon review of the evidence of record, the Board finds that a disability rating in excess of 70 percent for PTSD prior to July 23, 2018 is not warranted. Initially, as noted above in the examination reports during the period on appeal, there is a consensus between most of the examiners that the Veteran has exaggerated his symptoms, making it difficult to determine the true level of the severity of his PTSD. However, it is clear that during the entire period on appeal, at no time did the Veteran present with total occupational and social impairment. The Veteran remained oriented to time and place and was consistently able to perform activities of daily living. He had no delusions or hallucinations, no grossly inappropriate behavior, and was not in persistent danger of hurting himself or others. He had no memory loss. He maintained a relationship with his children, particularly with his daughter. He was able to maintain full-time employment as a security guard where his tasks included interaction with people. There were no disciplinary actions or complaints from his place of employment. He expressed a desire to seek a romantic relationship, and the overall disability picture reflects that the Veteran is not out of touch with reality. The Veteran's symptomatology does not reflect total occupational and social impairment during the period prior to July 23, 2018. (Continued on the next page) For the reasons above, the criteria for the assignment of a rating in excess of 70 percent prior to July 23, 2018 for PTSD are not met or approximated. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.