Citation Nr: 21032513 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-51 974 DATE: May 27, 2021 ORDER Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran's PTSD has not been manifested by total social and occupational impairment. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.125, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1975 to May 1976. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge in May 2020. This matter was remanded for further development in a January 2021 Board of Veterans' Appeals (Board) decision, along with the issue of entitlement to a total disability rating for compensation based on individual unemployability (TDIU). The Board indicated that remand was necessary to obtain outstanding VA and private treatment records from 2014 to 2020. Additional VA records have been associated with the claims file; however, despite repeated efforts to obtain private treatment records indicated by the Veteran, no response has been received by the treating provider. In a February 2021 rating decision, the Veteran's disability rating for PTSD was increased from 30 percent to 70 percent and the entitlement to TDIU was granted, effective April 20, 2012, the receipt date of the Veteran's service-connection claim for PTSD. The Board notes that TDIU has been granted for the duration of the period on appeal. As the Veteran has received the full benefit sought, the issue of TDIU is moot and is not presently before the Board for adjudication. Otherwise, there has been substantial compliance with the January 2021 remand directives and the matter of entitlement to an increased initial rating for PTSD in excess of 70 percent is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has reported experiencing a range of symptoms attributed to PTSD which he has indicated preclude him from employment, including panic attacks; sleep disturbances; nightmares; decreased energy, motivation, and concentration; avoidance behaviors; hallucinations; flashbacks; intrusive thoughts; anxiety; depression; irritability; paranoia; hypervigilance; and social withdrawal and isolation. VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's service-connected PTSD has been evaluated under 38 C.F.R. § 4.130 using the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairments. See 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula, a 70 percent rating is assigned 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. Id. A 100 percent rating is assigned 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. The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DCs. See id. VA must consider all symptoms of a veteran's disorder that affect his or her occupational and social impairment. See id. at 443. If the evidence demonstrates that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id. VA must consider all of the Veteran's symptoms and resulting functional impairment as shown by the evidence in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the moment of examination. See id. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an initial evaluation in excess of 70 percent for PTSD. The reasons follow. The Veteran underwent VA psychological examinations in June 2012 and August 2020. On both occasions, the examiners characterized the severity of the Veteran's PTSD as social and occupational impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. In both instances, the examiners indicated that they were able to distinguish symptoms associated with the Veteran's service-connected PTSD from other nonservice-connected psychiatric conditions, such as depressive disorder and antisocial personality disorder. The findings of the VA examiners are commensurate with a disability rating of 10 percent. While the adjudicator makes the determination of what evaluation is warranted for the service-connected PTSD, the examiner's conclusion that the Veteran's PTSD was summarized best by the criteria described under the 10 percent rating is evidence against a finding that the Veteran's psychiatric disorder causes total social and occupational impairment in order to warrant a 100 percent disability rating. The Veteran also submitted a private psychological assessment from Ronald Sherman, Ph.D. based on a review of the evidence and a one-time telemedical evaluation completed in June 2020. Dr. Sherman stated that the Veteran experiences intrusive memories, paranoia, hypervigilance, depression, visual hallucinations, suicidal ideation sleep disturbance, anxiety, nightmares, emotional lability, diminished frustration tolerance, anhedonia, feelings of guilt/worthlessness, psychomotor agitation, decreased energy, mood disturbances, and social withdrawal and isolation. He assessed the Veteran with PTSD, major depressive disorder, and anxiety disorder. Dr. Sherman concluded that the Veteran was totally disabled emotionally and unable to function in any job due to his multiple psychiatric conditions, since at least April 20, 2012. Unlike the VA examiners, Dr. Sherman stated that the symptoms and limitations stemming from the Veteran's multiple psychiatric conditions cannot be differentiated or readily distinguished. The increased rating and award of TDIU granted by the February 2021 rating decision appears to consider the Veteran's symptoms and limitations associated with the Veteran's combined psychiatric disorders, without distinguishing between service-connected and nonservice-connected conditions. However, even in consideration of the Veteran's combined psychological impairment, the preponderance of the evidence is against a finding that the Veteran's service-connected psychiatric disorder is characterized by total social and occupational impairment in order to warrant a 100 percent disability rating for PTSD. Treatment records are largely absent of the types and level of severity of symptoms associated with the listed criteria for a 100 percent disability rating, including 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. Although the Veteran has reported visual hallucinations of seeing spiders at times, the Veteran has most often presented without any evidence of perceptual abnormalities on mental status examination, and the hallucinations are not indicated to be persistent. Treatment notes also state that the Veteran has chronic passive suicidal ideation relating to his history of antisocial personality disorder. He has called a crisis hotline and was treated at the emergency room during the relevant period for suicidal ideation. However, the record indicates no suicidal plan or attempts and he has not required extended inpatient treatment. As discussed further below, he has maintained relatively stable functioning with the ability to care for himself independently and is not indicated to be a persistent danger to himself or others. The Veteran has stated that he is unable to work, in part, because of difficulties getting along with others, irritability, avoidance behaviors, being uncomfortable in crowds, and social isolation/withdrawal. However, treatment records over the longitudinal record establish that the Veteran is capable of appropriate behavior, engaging in social interactions, maintaining interpersonal relationships, and managing himself independently in public. The Veteran has maintained independence in his activities of daily living and has reported the ability to do his own shopping at the grocery store. He has repeatedly referenced spending time with friends and family. In 2014, the Veteran reported that he would be celebrating Thanksgiving with some friends and then visiting family in Texas for three weeks over the Christmas holiday. In 2017, he reported playing with his niece, visiting his friends, and going to the movies. He again reported visiting family for the holidays in 2018. In 2019, the Veteran expressed his love for his family and stated that visiting with them keeps him happy. He has spent extended periods of time living with friends and has also lived with his mother, serving as her primary caregiver for at least six months. Despite noting the Veteran's depressive and anxious symptoms with irritability, the Veteran has been described as calm, cooperative, and pleasant, with appropriate behavior on numerous occasions. All of these findings are probative evidence against the Veteran's PTSD being characterized by total social impairment. Furthermore, the Board acknowledges that the Veteran has some occupational impairment resulting from his PTSD; however, that impairment is adequately considered by the Veteran's 70 percent disability rating and now the TDIU, which is not equivalent to total occupational impairment. Despite the Veteran's psychiatric symptoms, the Veteran has maintained independence in activities of daily living and is able to drive, do his own shopping, and go to the movies. He has served as a caretaker for his mother and has also expressed interest in volunteering his time towards vocational opportunities presented by his sister. Although the Veteran experiences a range of anxious and depressive symptoms, recurrent mental status examinations show that the Veteran has maintained intact cognitive functioning with findings of intact memory, a linear and goal-directed thought process, and fair insight and judgment. He has generally presented as fully alert and oriented, pleasant, calm, and cooperative. He has reported maintaining relationships with friends and family and has repeatedly exhibited appropriate behavior during interactions with treating sources and examiners. These findings are not indicative of total social impairment. In order for a 100 percent schedular rating to be warranted, both social and occupational impairment must be total or more closely approximate total impairment. As laid out above, the preponderance of the evidence is against the Veteran's social impairment being total. For all the reasons stated herein, the preponderance of the evidence is against an initial evaluation in excess of 70 percent for PTSD, as the evidence does not show total social and total occupational impairment. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.