Citation Nr: 21039739 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-21 715 DATE: July 1, 2021 ORDER Prior to September 28, 2016, a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. For the period beginning September 28, 2016, a rating in excess of 70 percent for PTSD is denied. FINDINGS OF FACT 1. Prior to September 28, 2016, the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity; but not by occupational and social impairment with deficiencies in most areas, or by total occupational and social impairment. 2. For the period beginning September 28, 2016, the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas; but not by total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to September 28, 2016, the criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. For the period beginning September 28, 2016, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to March 1971. The Veteran died in December 2017 and his surviving spouse has been substituted as the appellant. The Veteran and his spouse testified at a Video Conference hearing before the undersigned Veterans Law Judge (VLJ) in June 2017. A transcript of the hearing is associated with the record. In December 2017, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. The Board notes that due to a discrepancy regarding the appellant's representation, in May 2021, the Board sent the appellant a letter requesting her to clarify the matter. She was notified that she had 30 days to respond to this letter or the Board would proceed with the appeal. To date, the appellant has not responded to the request for clarification. Therefore, the Board will assume that the appellant wishes to represent herself and will proceed with the appeal. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § § 4.21. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In both initial rating claims and normal increased rating claims, the Board must discuss whether any "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 9411, PTSD, a 50 percent rating is warranted if there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 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. 38 C.F.R. § 4.130, Diagnostic Codes 9411. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit has embraced the Mauerhan court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In accordance with 38 C.F.R. § §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to these disabilities. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. A rating in excess of 50 percent for PTSD, prior to September 28, 2016, and in excess of 70 percent thereafter In a February 2007 rating decision, the RO granted service connection for PTSD. An evaluation of 50 percent was assigned, effective November 30, 2006. In an August 2011 rating decision, the 50 percent rating was continued, based on the results of an August 2011 VA PTSD examination. The Veteran appealed this rating. In a May 2020 rating decision, the RO granted an increased rating of 70 percent for the service-connected PTSD. The Veteran continues to appeal the ratings for his PTSD. On VA examination in August 2011, the Veteran reported good social functioning. Specifically, he noted he had been married since 1998 and his relationship was pretty good; he reported having a really good relationship with his daughter and that he spent time with a cousin; and also noted that he had been babysitting his five-year old granddaughter for about six months and that he really enjoyed spending time with her. He also noted that he was in therapy for his PTSD, and it was going well. The examiner noted that the Veteran endorsed symptoms such as depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, and impaired abstract thinking. The examiner concluded that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. On VA examination in March 2014, the Veteran again reported good social functioning. He noted that he was living with his wife of 20 years; that he had great relationships with his grandchildren from 2-8 years old and his adult daughters; that he had been reconnecting with is adult son; that his cousin, nieces and nephews were his friends; that he was very close to his 86-year old mother; and that he went to church every Sunday. He also reported that he retired in 2010 when he turned 62 just because he wanted to retire at that age. He was still in group therapy for his PTSD and still enjoyed the group. The examiner noted that the Veteran endorsed symptoms of PTSD such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mildly impaired attention/concentration, and mild memory loss. The Veteran also reported chronic worrying and checking the locks and doors frequently and anxiety attacks (not panic attacks). He also reported being in a bad mood all the time, and the examiner noted that during the examination, his mood was dysthymic. He denied hallucinations. The Board finds that the evidence does not show that the Veteran's PTSD met the criteria for a rating in excess of 50 percent prior to September 28, 2016. The Veteran's main symptoms during this period did not result in deficiencies in most areas, and certainly did not result in total occupational and social impairment. In this regard, he had good social relationships with his wife of several years, his mother, cousins, all but one of his adult children, and all his grandchildren. He also attended church regularly. Although he reported on examination in 2011 that he had retired due to problems with a new supervisor, he did not indicate that those problems were related to his PTSD. Furthermore, on examination in 2014, he noted that he wanted to make it to 62 before retiring and that is what he did. He did not report and the record does not show that he ever lost a job or was refused employment due to his PTSD. He did have disturbances of motivation and mood, and was noted to be dysthymic, but he still functioned independently, and he did not report suicidal ideation. There was no evidence of impaired impulse control or history of violence towards himself or others. He reported chronic worrying and obsessional ritualschecking the locks and doors frequentlyin 2014, but he did not indicate that this interfered with routine activities. Speech was normal, and he reported anxiety and anxiety attacks, but no panic attacks, and again, he was able to function independently. Accordingly, and based on the evidence noted above, the Board finds that the Veteran's PTSD symptomatology did not result in occupational and social impairment with deficiencies in most areas for this period, and a rating in excess of 50 percent under Diagnostic Code 9411 is not warranted prior to September 28, 2016. The Board has also considered other medical evidence of record for this period, including VA treatment records. None of these records contains evidence showing that the Veteran's PTSD was manifested by symptoms that met the criteria for a rating in excess of 50 percent prior to September 28, 2016. The Board has considered whether there is any other schedular basis for granting a higher rating other than that discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a higher schedular rating. 38 U.S.C. § 5107 (b); 38 C.F.R. § §§ 4.7, 4.21. The Board also finds that the evidence does not show that the Veteran met the criteria for a rating in excess of 70 percent beginning September 28, 2016 or at any time during the appeal. On VA examination in September 2016, the Veteran reported good social functioning. Specifically, he noted that he was still married and living with his wife of over 20 years, although they had occasional marital discord, which caused his wife to go and stay with his stepdaughter. He was working on building a relationship with his adult son, he and his adult daughter talked all the time, and his five granddaughters visited him fairly often. On Sundays, he went to church and had dinner with his siblings and his mother, and he had a cousin who visited him frequently. He also reported hobbies such as riding his exercise bike and occasionally going to dinner with his wife. He also reported that he had recently joined a veterans' group and attended meetings once a month. He denied suicidal ideation. He endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood, and affect was slightly constricted. However, speech was normal, and there were no signs of impairment in thought processes or content. A statement from J.L.D., LSCW, the Veteran's counselor at the VA Huntsville CBOC Mental Health Clinic, received in October 2016, indicates that the Veteran's PTSD was extreme and prevented him from maintaining a stable, functioning environment, working, trusting others, maintaining social contacts, and prevented him from having an appropriate view of personal safety, which gave him a strong desire to protect himself with the intent to harm others when or if they were perceived as a threat. The counselor also opined that the Veteran was unable to consistently perform any work-related task, and unable to maintain any gainful, productive employment, even with reasonable accommodations. The counselor reported further that the Veteran's family relationships were grossly impaired, in that he had limited interaction with his grandchildren and only from the position of power; his interaction with his children was very limited; and he did not interact appropriately with his spouse; and he had one friend who visited him, although the visits were not mutual and a normal friendship did not exist. He also noted that the Veteran was unable to handle normal stressors. The Board finds that the September 2016 report from the Veteran's Mental Health Center counselor is contradictory to the Veteran's self-reported symptomatology during his September 2016 VA examination, and the Veteran never reported that the September 2016 examination findings were not adequate or inaccurate. Furthermore, the Board notes that the Mental Health Center counselor did not point to any evidence from the record related to the Veteran's work history or social interactions to explain why he believed the Veteran was unable to maintain gainful employment even with reasonable accommodations. Moreover, the Board is unsure what the counselor meant by stating the Veteran's only interaction with his grandchildren was from a position of power or that the Veteran did not have a "normal" friendship. As noted during the September 2016 VA examination, the Veteran's friend visited him often, and the Veteran thoroughly enjoyed spending time with his grandchildren, whom he reported made him want to live forever. The social worker's report is a rather radical departure from the veteran's report of his symptoms and relationships up to that point, and involves unfounded and sinister interpretations of the veteran's relationships. Based on the discrepancies in the Mental Health Center counselor's report with the September 2016 VA examination report, and the overall inconsistency of the social worker's assessment of the veteran's symptoms and relationships with the other evidence on file, the Board finds that the counselor's report lacks probative value, and gives more weight to the September 2016 VA examination report. As the evidence noted above shows, there is no evidence during the appeal of total occupational and social impairment, as is required for a rating of 100 percent under Diagnostic Code 9411. More specifically, there is no evidence of gross impairment in thought processes or communication, delusions or hallucinations, inappropriate behavior, a history of danger to himself or others, inability to perform activities of daily living, disorientation, or memory loss for names of close relatives, his own occupation, or his name. Although the Veteran reported some marital conflict, he was still married, and continued to report a very good relationship with his daughter and granddaughters, and noted that he was still working on rebuilding his relationship with his son. He also noted that he was still going to church regularly with his elderly mother, and that he had dinner with his mother and living siblings after church on Sundays. He also indicated that he had one friend who occasionally visited him. Moreover, although the Veteran was still not working, he did not report and there is no evidence showing that he was unable to work due to his PTSD. He indicated that he had a goal as to when to retire, and that when he met that goal, he retired. The Board has also considered other medical evidence of record for this period, including VA treatment records. None of these records contains evidence showing that the Veteran's PTSD was manifested by symptoms that meet the criteria for a rating in excess of 70 percent for the period beginning September 28, 2016. The Board has considered whether there is any other schedular basis for granting a higher rating other than that discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a higher schedular rating. 38 U.S.C. § 5107 (b); 38 C.F.R. § §§ 4.7, 4.21. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.