Citation Nr: 21039880 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-39 038 DATE: July 1, 2021 ORDER Entitlement to an increased disability evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD) is denied. REMANDED Entitlement to total disability evaluation based on individual unemployability, due to service-connected disabilities (TDIU), is remanded. FINDING OF FACT The objective medical evidence does not show during the appeal period that PTSD more nearly approximates total occupational and social impairment, due to symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting one's self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, one's own occupation or own name. CONCLUSION OF LAW The criteria for an increased disability evaluation in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1995 to March 2010, during which he was deployed 3 times to Iraq, for which he was awarded, among his other decorations, the Combat Action Ribbon. Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating 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, military 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. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the relevant overall temporal 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). The evaluation of the same disability under several diagnostic codes, known as "pyramiding," must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14. Entitlement to an increased disability evaluation in excess of 70 percent for PTSD. The Board denied this claim in its May 2019 decision. Upon appeal by the Veteran to the United States Court of Appeals for Veterans Claims (the Court), in a September 2020 decision the Court vacated that decision and remanded the claim to the Board for action consistent with the Joint Motion for Partial Remand (JMPR), agreed to and submitted to the Court by the parties. The parties agree that the Board's analysis focusing on the absence of symptoms for a higher rating for PTSD was an inadequate statement of the reasons and basis for its denial. The parties further agree that a determination of the appropriate evaluation for service-connected PTSD must be based upon an evaluation of all evidence of social and occupational impairment, not merely on the symptoms listed in the diagnostic code. The Veteran's PTSD is currently evaluated under Diagnostic Code 9411, which defers to the General Rating Formula for Mental Disorders (General Rating Formula), which provides a 70 percent disability rating 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. A 100 percent disability rating will be assigned for total occupational and social impairment, due to symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting one's self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, one's own occupation or own name. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, which would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating, then that rating will be assigned. Mauerhan, 16 Vet. App. at 443. The Veteran's PTSD was initially evaluated at 10 percent effective March 2010. Effective September 2015, his PTSD was evaluated at 70 percent. One year later, on September 24, 2016, he sought an increased evaluation, thereby beginning the appeal period. The Board begins its review of the evidence 1 year prior to that date. Turning to the record, the Veteran was afforded a VA examination for PTSD in November 2015, in which the examiner diagnosed that disorder. He noted the Veteran's reports of angering easily, verbal aggression, he has damaged a number of objects, but he does not direct the anger towards people, although he argued with a business partner resulting in the selling of their business and he exhibited a verbal outburst at the supervisor of his next job and was immediately fired. The Veteran further reported symptoms of irritability, problems getting to and staying asleep, problems getting back to sleep once awake, active in sleep, self-isolating, little leisure or social activity, avoids crowds, easily startled, and hypervigilance. The examiner found symptoms associated with the diagnosis were depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner's behavioral observations were the Veteran arrived unaccompanied promptly for the appointment, he was casually dressed and appropriately groomed, he responded readily to questions, he showed good eye contact, his affect was animated, and his mood was irritated. The examiner found occupational and social impairment with reduced reliability and productivity. In the November 2016 VA examination for PTSD, the examiner diagnosed PTSD, insomnia disorder, generalized anxiety disorder, mild neurocognitive disorder, and panic disorder. He noted the Veteran's reports of symptoms, such as difficulty staying motivated, relationship difficulty, repeated behaviors which interfere with routine activities, visual spatial changes (a sense of uncertainty, even in formerly familiar surroundings), anger control difficulties, headaches (mild 2-4 times per month), emotional numbness or flatness, less feeling of empathy for what others are going through, noise sensitivity, difficulty concentrating, ringing in the ears, and hearing loss. The Veteran further reported anxiety, suspiciousness, panic attacks include, fear of a panic attack affects some of his decisions about where he goes and what he does, memory loss, feeling that his mind is not functioning as well as it used to, and "word loss." The examiner found symptoms associated with the diagnoses were depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, impairment of short-and long-term memory, speech intermittently illogical, obscure, or irrelevant, disturbances of motivation and mood, obsessional rituals which interfere with routine activities, impaired impulse control, such as unprovoked irritability with periods of violence, and spatial disorientation. The examiner's behavioral observations include only that the Veteran understands the effects of his symptoms on the end of his marriage and hopes to get help in easing symptoms. The examiner found occupational and social impairment with reduced reliability and productivity. In the July 2017 VA examination for PTSD, the examiner diagnosed PTSD, insomnia disorder, generalized anxiety disorder, and persistent depressive disorder. He noted the Veteran's reported symptoms of difficulty staying motivated, relationship difficulty, repeated behaviors which interfere with routine activities, visual spatial changes (a sense of uncertainty, even in formerly familiar surroundings), anger control difficulties, headaches (moderate, 1-2 times per month; severe 1 time per month), emotional numbness or flatness, less feeling of empathy for what others are going through, noise sensitivity, feeling exhausted often; difficulty concentrating; light sensitivity; and ringing in the ears. The Veteran again reported anxiety, suspiciousness, panic attacks include, fear of a panic attack affects some of his decisions about where he goes and what he does, memory loss, feeling that his mind is not functioning as well as it used to, and speech difficulty including having difficulty making his thoughts clear, losing his train of thought, experiencing "word loss," and perceiving confusion in others by what he is trying to say. The examiner found symptoms associated with the diagnoses were depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, impairment of short-and long-term memory, speech intermittently illogical, obscure, or irrelevant, disturbances of motivation and mood, obsessional rituals which interfere with routine activities, impaired impulse control, such as unprovoked irritability with periods of violence, and spatial disorientation. The examiner's behavioral observations include only that the Veteran understands the effects of his symptoms on the end of his marriage and hopes to get help in easing symptoms. The examiner found occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In November 2017 VA primary care outpatient notes, the treatment provider noted the Veteran denied any suicidal or homicidal thoughts, any attempts of suicide, any hopelessness, although he indicated he would like to talk to somebody about this, and he does not want medications. Although his Patient Health Questionnaire (PHQ-2) that month was negative for depression, his PTSD decreeing that months showed a positive score of 3 out of 4 questions. In a September 2018 statement, B.G., a readjustment therapist at a Veterans Center states the Veteran is currently "working on" stressors PTSD, which include social and general anxiety. "Because of this he may need extra time or test, papers, and/or alterations to assignments that require interaction with the general public." In a September 2018 private Disability Benefits Questionnaire (DBQ) for PTSD, Dr. H.H-G diagnosed PTSD and found occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. She further found symptoms associated with the diagnosis of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, panic attacks more than once a week, near-continuous panic or depression, mild memory loss, flattened affect, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a worklike setting. However, Dr. H.H-G. did not find that the Veteran suffered from short and long-term memory difficulties, spatial disorientation, speech that was intermittently illogical, obscure, and irrelevant, and impaired impulse control, such as unprovoked irritability with periods of violence. Conversely, she concluded that his speech flow was normal, thought content was appropriate, his organization of thought was goal-directed, and his fund of knowledge, intellectual abilities, capacity for abstraction, and ability to interpret proverbs were average. She also recorded his report that he continued living with his child and performed regular shopping and household tasks. The Veteran further reported that he did all household finances. However, Dr. H.H-G. noted the Veteran's reports of self-isolation, doing his food shopping very early in the morning, did household chores only on a weekly basis and showered once a week. She also observed that he neglected his personal appearance. A second statement by B.G. in December 2018 states the Veteran experiences multiple panic attacks per week, had impulsive thoughts, occasionally makes statements irrelevant to the conversation, experiences severe mood swings, struggles with managing stress and such daily activities as bathing and changing clothes, and can become forgetful or "obsessed over things that can appear small." As stated above, the symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, of their effects or of an occupational and social impairment equivalent which would justify a higher rating. Therefore, the Board will consider when necessary whether some symptoms may be reasonably similar to or suggested by the criteria associated with the higher ratings of the General Rating Formula. However, in looking to 38 C.F.R. § 4.126 (a), the Board also notes that it "shall consider frequency, severity, and duration of psychiatric symptoms...." The Board understands that regulation, in its use of the phrase "shall consider," to require consideration of such factors. See also Vasquez-Claudio v. Shinseki, 713 F.3d 112 116-17 ("Reading §§ 4.126 and 4.130 together, it is evident that the "frequency, severity, and duration" of a veteran's symptoms must play an important role in determining his disability level") (Fed. Cir. 2013). Consequently, in following this directive, the Board will consider the factual context regarding symptoms, that is to say, by their temporal significance and their intensity. As already stated, the Veteran is currently rated at 70 percent for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. As set forth above, criteria for a total (100 percent) rating in the General Rating Formula include symptoms similar to or suggested by gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting one's 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, one's own occupation or own name. These are symptoms of total disability, effectively precluding all independent functioning. However, the reports by the Veteran and those findings made by the examiners as they stand in the record do not give indication of a complete incapacity of the Veteran to function or deport himself in the work place or in a social setting. For example, the record shows consistent reports by the Veteran of his pursuit of higher eduction degrees in recent years (to include 2 Master's degrees and ongoing studies for a Ph.D.) and that his endeavors in fact aid him overall in steadying himself with goal-directed activity, he views it as "a form of therapy" and "it keeps his mind off negative thoughts." This bespeaks diligence, self-discipline, adequate concentration at the least, and appropriate behaviors in the presence of other persons for the Veteran to be able to continue his studies. Moreover, Dr. H.H-G. noted from the Veteran's reports in September 2018 he is a full-time student, he lives with his son and "he keeps his struggles to himself, not wanting to burden others." The foregoing is not reasonably similar to or suggestive of total intellectual or emotional functional impairment. Additionally, the memory impairment reported by the Veteran elsewhere is not reported at all to Dr. H.H-G. in September 2018 (although she makes reference to its appearance in the record in the Employability Assessment). Although Dr. H.H-G. found impaired impulse control "such as" what might culminate in violence, this symptom and a violent result do not appear in the record to establish frequency or an ongoing manifestation. Based on the above reports by the Veteran to VA examiners and Dr. H.H-G. and their subsequent findings, the Board finds the Veteran does not exhibit symptomatology associated with PTSD at a level of severity reasonably similar to or suggested by "grossly" impaired thought processes, diminished communication abilities, irritability leading to violence, grossly inappropriate behavior, or persistent hallucinations. Based on these or similar criteria, the record does not provide evidence of total impairment. The Board has carefully considered the Veteran's detailed and extensive reports to treatment providers and examiners, as they appear throughout the record. The Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. Nonetheless, his lay evidence in turn must be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The statements and the Veteran's reports to examiners and treatment providers give highly detailed information of the Veteran's current symptoms at various times, as discussed at length above. However, as a factual determination and based on the Board's conclusions above, the symptoms do not rise to the level of a 100 percent rating. The Board therefore assigns more probative value to the findings of the VA examiners and Dr. H.H-G., as they are psychiatric professionals who conducted their examinations and interviews during in-person sessions with the Veteran, they thoroughly reviewed the Veteran's medical history and their findings are adequate for rating purposes. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). For the reasons stated and based on the objective medical evidence, the Board finds the preponderance of the evidence does not support a disability evaluation for PTSD in excess of 70 percent. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND Entitlement to TDIU. A February 2016 VA Vocational Rehabilitation and Employment Services evaluation shows in several tests comprising the Career Ability Placement Survey (CAPS), to include mechanical reasoning, spatial relations, cerebral reasoning, numeric ability, language usage, word knowledge, perceptual speed and accuracy, and manual speed and dexterity, the Veteran scored "extremely high" (score of 9) in the first and fourth tests, "very high" (score of 8) in the second, third, fifth, sixth, and eighth tests and an above average score of 6 in the last test. The foregoing indicated to the counselor viable opportunities for the Veteran in scientific, business and communication professional areas. The counselor also found in-service duties provided the Veteran with skills in problem solving, resolution support, scheduling, typing, training and development, leadership, security, and working under stress. However, in a September 2018 private DBQ for PTSD, Dr. H.H-G. offered an employability assessment, in which she observed that the Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his PTSD. She observed that the Veteran does not deal well with authority or criticism and notes not getting enough restful sleep and feeling fatigued nearly every day, thereby creating a safety issue in the workplace. She believes the Veteran's memory difficulties and difficulty maintaining and sustaining a steady mood would leading to problems in his social and work life. Other symptoms of anxiety, "paranoia," emotional outbursts, fatigue, general emotion turmoil would lead to distractibility and absenteeism, deemed as inappropriate in the workplace. Additionally, she discussed in detail current psychiatric literature addressing the connection of PTSD to unemployment. The foregoing shows findings which cannot be readily reconciled for the purposes of determining entitlement to TDIU. For that reason, remand is necessary for a new VA examination for PTSD for current findings of functional impairment and which will address and evaluate the disparities of findings appearing throughout the record. This should include a functional evaluation of all service connected disabilities in combination. The matter is REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for PTSD or any other service connected disorder at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for examination(s) by a VA examiner(s) with an appropriate specialty for producing findings for PTSD and all other service connected disabilities. The complete electronic claims file must be made available to the examiner(s) in conjunction with the examination(s). The examiner(s) should detail all findings. The examiner(s) is/are requested to provide findings which address the current nature, severity and extent of the Veteran's functional impairment due to his service-connected PTSD, currently rated at 70 percent disabling, with specific reference to his capacities for social interaction and occupational tasks. Similar findings describing any functional impairment should be made for all service disabilities. It is noted that the Veteran is currently also service-connected for 11 orthopedic and neurological disorders, as well as left-lower-extremity muscle/vein disorder, tinnitus, gastroesophageal reflux disease (GERD), and a scar. The examiner is requested to discuss and either reconcile the findings or reject the findings and conclusions stated in the VA examinations, Dr. H.H-G.'s Employability Assessment and the digest/article on file, in either case providing an explanation. That analysis should be in the form of commentary or an opinion, either of which must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner should also evaluate the Veteran's reports to treatment providers, as they appear throughout the record and any other lay evidence of the Veteran. The examiner is urged to note that the Veteran's reports and lay evidence must be discussed for the examiner's commentary or opinion to be deemed sufficient for VA adjudication purposes. 3. After completing the above development and any other indicated, the Agency of Original Jurisdiction should readjudicate the claim for TDIU. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.