Citation Nr: 21031208 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-21 761 DATE: May 20, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran's posttraumatic stress disorder (PTSD) manifested as occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.4, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1962 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2012 and March 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran testified at a September 2016 videoconference hearing before the undersigned. A transcript of the hearing has been associated with the claims file. The claim for an increased rating for PTSD was denied by the Board in February 2018. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) which, in December 2018 vacated and remanded the issue for action consistent with a Joint Motion for Partial Remand (Joint Motion). In a June 2019 decision the Board again denied the issue of entitlement to a rating higher in excess of 50 percent for PTSD. The Veteran again appealed the Board's decision to the Court which, in April 2020, vacated and remanded the issue for action consistent with a Joint Motion for Remand (JMR). In August 2020, the Board remanded the issue for Agency of Original Jurisdiction (AOJ) review of additional evidence submitted by the Veteran. A February 2021 Regional Office (RO) rating decision increased the rating for PTSD to 70 percent disabling effective February 20, 2008. Additionally, the February 2021 rating decision granted entitlement to individual unemployability effective February 20, 2008, the date the Veteran first met the schedular criteria. As the award of IU was granted for the entire appeal period, the award constitutes a full grant of the benefit sought on appeal and therefore, the issue is no longer before the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are also appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) The Veteran contends that his service-connected PTSD disability warrants a disability rating in excess of 70 percent. The Veteran's PTSD is currently evaluated under Diagnostic Code 9411, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula, a 70 percent evaluation 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 actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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 maximum 100 percent evaluation 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 for names of close relatives, own occupation, or own name. Id. In March 2008, the Veteran complained of experiencing visual hallucinations relating to witnessing an in-service suicide. In May 2008, a clinician noted the Veteran's feelings of depression and his difficulty sleeping. The Veteran indicated that he had experienced suicidal thoughts, but he had no plan on carrying out such thoughts. In December 2008, a clinician found the Veteran to be mildly depressed, likely because his spouse was recently laid off from her job. In January 2009, a clinician noted that the Veteran had recently scared his spouse after having a lengthy flashback during which he reported "seeing somebody in the corner [of] the bedroom". The Veteran's spouse reported that it took the Veteran approximately 30 minutes to return to the "here and now". The Veteran was not suicidal or homicidal. In February 2009, the Veteran reported a history of experiencing visual hallucinations related to service. The clinician indicated that further assessment was needed to rule out the possible misuse of pain medications or presence of drug interactions. In June 2010, the Veteran expressed feelings of stress relating to his family's financial obligations, and he indicated that he was "getting along okay with wife and family". The Veteran indicated that he was "not overly distressed" by visual hallucinations that appeared in the corner of his eye. In November 2010, the Veteran indicated that he continued to have hallucinations and nightmares. The Veteran was "doing his best to stay active with family and friends and [was] doing some occasional volunteering when it [was] possible at the nearby school". In January 2011, the Veteran's spouse related that the Veteran's PTSD was "getting under control". The Veteran no longer said "hurtful things" to others, but he became "loud and mean" when he neglected to take his medication. In March 2011, the Veteran enjoyed maintaining a large garden and socializing with friends. In a November 2011 psychiatric evaluation, the Veteran reported that he was "married happily" and was not working due to physical limitations. In September 2011, the Veteran reported having fleeting suicidal ideation and "morbid thoughts", but he indicated that he would not act on such thoughts due to his accountability to his spouse and family. In November 2011, the Veteran reported that his visual hallucination of a partial human body had appeared so often that he no longer found it to be disturbing. In June 2012, the Veteran reported experiencing seeing a hallucination of a man in his bedroom. In September 2012, the Veteran reported struggling with feelings of estrangement from his son and nightmares related to service. In March 2013, the Veteran complained of difficulty sleeping. The Veteran indicated that he met with other veterans on Wednesdays for coffee. In a May 2013 record, the Veteran indicated that he missed going to work, woodworking, and making things for other people. The Veteran indicated that he was generally a "homebody". The Veteran underwent a VA examination in February 2014, at which time the Veteran stated that he lived with his spouse of 15 years. The Veteran denied ever having had marital problems. The Veteran had four adult children, and he reported that he generally got along well with three of them. The Veteran reported having basically little contact with his fourth child, because that child viewed the Veteran as a "lazy alcoholic", though the Veteran reported that he stopped consuming alcohol in 2008. The Veteran reported that he worked about four long-term jobs after leaving the military, most recently at a cold storage plant until his retirement in 2000. The Veteran indicated that he did a "good job" at work, though he reported having some difficulties getting along with coworkers or supervisors. The Veteran reported experiencing intrusive thoughts, dreams, and brief flashbacks and avoided certain thoughts, feelings, and external reminders of his service. He reported feeling anxious every day and stated that he experienced hallucinations, seeing "flashes" of a service member who committed suicide. The Veteran indicated that he was "pretty happy". The Veteran stated he could manage the basic activities of daily living. The examiner found that the Veteran had a depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was capable of managing his financial affairs. The examiner found that the Veteran had experienced significant improvement in his psychiatric symptoms since he first sought out mental health treatment in 2004. The examiner found that the Veteran's symptoms resulted in occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks, although the Veteran generally functioned satisfactorily, with normal routine behavior, self-care, and conversation. In June 2014, Dr. McPeak submitted a psychiatric impairment questionnaire noting that the Veteran suffered from persistent delusions or hallucinations, deficiencies in mood, difficulty in adapting to stressful circumstances, intrusive recollections of a traumatic experience, unprovoked hostility and irritability, an inability to establish and maintain effective relationships, and possible deficiencies in judgment. In terms of the Veteran's occupational limitations, Dr. McPeak found that the Veteran had no limitations in his ability to remember locations and work-like procedures, sustain an ordinary routine without supervision, accept instructions, respond appropriately to criticism from supervisors, maintain socially appropriate behavior, adhere to basic standards of neatness and cleanliness, and be aware of normal hazards and take appropriate precautions. The Veteran was mildly limited in his ability to perform activities within a schedule, maintain regular attendance, be punctual within customary tolerance, respond appropriately to changes in the work setting, and set realistic goals or make plans independently. The Veteran was moderately limited in his ability to work in coordination with or in proximity to others without being distracted by them, interact appropriately with the general public, and to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. The Veteran was moderately-to-markedly limited in his ability to maintain attention and concentration for extended periods and to travel to unfamiliar places or use public transportation. The Veteran was markedly limited in his ability to complete a normal work week without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. Dr. McPeak indicated that the Veteran's impairments would result in one absence from work monthly. Dr. McPeak stated that the Veteran's PTSD affected his sleep, which in turn impacted his cognitive functioning and ability to function under stress. In November 2014, the Veteran reported that he met weekly to talk with a group of veterans. In December 2014, the Veteran reported that he had had a busy holiday with lots of people in the house, and he reported that he enjoyed watching "the kids". The Veteran continued to enjoy the socialization of meeting with other veterans every week. In August 2016, Dr. McPeak submitted a psychiatric impairment questionnaire noting that the Veteran complained of daily visual hallucinations of a "headless guy in [the] house". Dr. McPeak found that the Veteran had deficiencies in family relations at times, persistent visual delusions or hallucinations, deficiencies in mood, difficulty in adapting to stressful circumstances, intrusive recollections of a traumatic experience, unprovoked hostility and irritability at times when triggered by memories, poor stress tolerance, an inability to establish and maintain effective relationships (sometimes withdrawing from family and friends), and occasional suicidal ideation. During his September2016 hearing before the undersigned, the Veteran reported that he had a "big problem" being around people; the Veteran preferred the company of his spouse and "maybe two others", and "that's the way [he] want[ed] it". He reported that he could do his job "very well" as long as he was left to work independently and that primarily his inability to continue working was due to hand, hip, and low back pain. The Veteran reported that he had occasional thoughts of suicide. A February 2021 VA PTSD examination reflects the Veteran lives with his wife of 21 years. He receives mental health treatment, including prescribed medications, through the VA. The examiner determined the Veteran continued to meet all the diagnostic criteria for PTSD. His symptoms were noted as depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss (such as forgetting names, directions or recent events), disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner described the Veteran as friendly and cooperative. He was oriented to person, place, time, and situation. The Veteran denied, and did not display, any signs of psychotic symptoms or thought processes. He also denied and current suicidal or homicidal ideation. The examiner assessed the Veteran's risk regarding suicidal ideation as 'not an elevated acute risk' with no need to follow up with his primary care provider regarding any life threatening findings in the examination. Based on the above medical evidence and lay statements, the Board finds that the preponderance of the evidence is against a finding for entitlement to a 100 percent rating for PTSD at any point during the period on appeal. While the Veteran did report frequent visual hallucinations, he has not reported symptoms which most nearly approximate total occupational and social impairment. Although the Veteran has reported occasional suicidal ideation and experienced unprovoked hostility and irritability, there is no indication that he has been a persistent danger to himself or others or been described as exhibiting grossly inappropriate behavior. The Veteran self-reported that he has been able to perform activities of daily living. While the Veteran has experienced some mild memory loss such as forgetting names, directions or recent events, his memory loss was not noted to be so severe that he forgot the names of close relatives, his own occupation, or his own name. The Veteran reported he does not like being around a large number of people but prefers to be in a small group that included his wife and perhaps an additional two other people. With regard to work, the Veteran reported that although he sometimes had difficulty getting along with superiors or coworkers, he stated that was able to do his job well as long as he was left alone. For the above reasons, the Board finds that the weight of the evidence shows the totality of the Veteran's psychiatric symptoms most nearly approximate those for a 70 percent disability rating. The Veteran's PTSD symptoms do not result in total occupational and social impairment during the period on appeal and entitlement to a rating in excess of 70 percent is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.