Citation Nr: 21030919 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 15-42 633A DATE: May 20, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from March 5, 2020 onward is denied. FINDING OF FACT The Veteran's PTSD was manifested by 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; difficulty in adapting to stressful circumstances; and suicidal ideation. Total social and occupational impairment has not been shown. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD from March 5, 2020 onward have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 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 August 1965 to June 1968. The Veteran testified before the undersigned Veterans Law Judge at a February 2019 Board hearing. A transcript of the hearing has been associated with the claims file. This issue was remanded by the Board in August 2019 for further development and in October 2020 for due process. The issue has since returned to the Board for appellate review. Entitlement to a rating in excess of 70 percent for PTSD from March 5, 2020 onward is denied. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings 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. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, 9411. Ratings are assigned according to the manifestation of particular symptoms. The use of the term "such as" in 38 C.F.R. § 4.130 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM). When determining the appropriate disability evaluation to assign for psychiatric disabilities, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Under the General Rating Formula for Mental Disorders, A 70 percent rating is warranted for 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is warranted for 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 of names of close relatives, own occupation, or own name. Id. On the March 5, 2020 VA PTSD examination, the Veteran stated that he lives with his wife; however, he spends the majority of his time in his room and stays up all night and sleeps in the day. The Veteran stated he and his wife are in separate bedrooms due to his nightmares. The examiner indicated that the Veteran experiences 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; difficulty in adapting to stressful circumstances; and suicidal ideation. The examiner found that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. On an April 2020 VA treatment record, the Veteran complained of anxiety. On examination, the medical provider found the Veteran to be alert and able to communicate by phone; oriented to place, time, and situation; euthymic, reactive and appropriate mood; regular speech; intact judgement; some insight; and no suicidal ideation. In a May 2020 VA treatment record, the Veteran presented with normal high anxiety. The Veteran stated he is managing and does not mind isolating at home. In a September 2020 lay statement, the Veteran's wife stated that he does not have friends and he isolates himself. She stated that she must make him come out to bathe and change his clothes. She stated that most of the time he does not know what day it is. She stated she must tell the Veteran when to take his medicine. She stated that she must take the Veteran to his doctor appointments because he forgets. She stated he has anxiety with really bad mood swings. In a September 2020 lay statement, the Veteran's neighbor, G.B., stated that as a retired nurse he has been called to give the Veteran advice for his medical problems. G. B. stated that he and the Veteran's wife at times must help the Veteran with his outlook and to rest. G.B. stated that the Veteran lives in the past and can be both happy and unhappy. G.B. stated that the Veteran has complicated sleep periods. On the September 2020 PTSD VA examination, the Veteran stated that he isolates himself in his room. He stated he may leave his home for an appointment. He stated that his difficulty concentrating prevents him from managing the finances. The Veteran stated that he "thinks about suicide everyday." The Veteran denied a current intent or plan to harm himself. The Veteran reported "hearing voices." He endorsed experiencing panic attacks once or twice a week and continued to report avoidant behavior; hypervigilance; and "lousy" short-term memory. The Veteran stated that his wife must remind him to shower because he neglects his hygiene. He stated that he and his wife continue to sleep in separate rooms due to his nightmares and flashbacks. The Veteran stated he has significant irritability. The September 2020 VA examiner indicated the Veteran experiences depressed mood; anxiety; suspiciousness; panic attacks 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; difficulty in adapting to stressful circumstances; suicidal ideation; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. On examination, the examiner observed the Veteran to be oriented to person, place, time and situation; appeared on-time and unaccompanied; adequately groomed; engaged and cooperative demeanor; linear and intact speech; stuttered throughout the interview; depressed and anxious mood; congruent affect; memory intact; intellect within normal limits; motor behavior within normal limits; coherent, logical, and goal directed thought process; did not report audio/visual hallucinations; and fair insight. The examiner concluded that that the Veteran's PTSD causes occupational and social impairment with deficiencies in most areas. In an October 2020 VA treatment record, the Veteran reported a history of anxiety, depression, PTSD, and insomnia. The Veteran stated that he has been experiencing nightmares. The Veteran stated he has thoughts that he would be better off dead as well as thinking about how to do this. The Veteran stated he has had three suicide attempts in the past between 1978 and 1985. In an October 2020 VA treatment record, the medical provider observed the Veteran to be alert and oriented to person, place, time, and situation; casually dressed with good personal hygiene; euthymic and intense mood; regular speech; somatically focused thought process; no active auditory or visual hallucinations; and intact judgment. In a November and December 2020 VA treatment record, the medical provider observed the Veteran to be alert and oriented to person, place, time, and situation; casually dressed with good personal hygiene; euthymic, reactive, and appropriate mood; regular speech; linear and goal directed thought process; no active auditory or visual hallucinations; and intact judgment. For the entire period on appeal, the Board finds that the Veteran's disability picture does not approximate the criteria for a 100 percent rating because the Veteran does not exhibit total occupational and social impairment. The Veteran has consistently been found to have linear and goal directed thought process; appropriate behavior; no persistent danger of hurting himself or others; orientation to time or place; and memory of names of close relatives and own name. He also has maintained relationships with his wife and neighbor. Accordingly, a rating in excess of 70 percent from March 5, 2020 onward is not warranted for the Veteran's PTSD. In reaching its decision, the Board has considered the benefit of the doubt rule. However, the preponderance of the evidence reflects that the Veteran's symptomatology more closely approximates the 70 rating currently assigned. Therefore, the Board concludes that the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, 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.