Citation Nr: 21040807 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-10 316 DATE: July 7, 2021 ORDER Entitlement to an initial rating greater than 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The record evidence shows that the nature, severity, frequency, and duration of the Veteran's service-connected PTSD symptoms do not more closely approximate total occupational and social impairment at any time during the appeal period. CONCLUSION OF LAW The criteria for an initial rating greater than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2009 to June 2009 and from August 2010 to September 2011, to include service in Afghanistan. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Board remanded the claim for additional development. There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that his PTSD symptomatology warrants a higher disability rating than the 70 percent currently and initially assigned. The service-connected PTSD is evaluated as 70 percent disabling, effective September 26, 2011, the day after he separated from service, under Diagnostic Code (DC) 9411 of the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411. Turning to the evidence of record, the Veteran was first afforded a VA examination for his PTSD in February 2013. The examiner concluded that PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that he is married to his wife of two years and that his marriage is "good," although his problems, such as a negative attitude and difficulty sleeping, put a serious strain on their relationship. His wife reported that he is unhappy, inpatient, very forgetful (unable to recall basic everyday tasks), has difficulty focusing and concentrating, and is socially distant and stays home. He also reported that he is enrolled in an online school program but is struggling with his academics and relies on his wife for assistance. Upon interviewing and examining the Veteran, the VA examiner noted that his PTSD symptoms include depressed mood, anxiety, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impairment of short and long-term memory, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting. In addition, the examiner noted that he endorsed experiencing a variety of moderate to severe PTSD signs and symptoms that negatively impact his quality of life, social functioning and occupational functioning. In June 2014, the Veteran underwent another VA examination to address the severity of his PTSD. The examiner concluded that PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that there has been little significant change, other than "more conflict" with his wife. His wife complains about finances and his social isolation, irritability, and verbal aggressiveness. He reported that he enjoys spending time with his three-year old daughter, speaks with his father via telephone a couple times a month, but otherwise does not visit anyone and no one visits him. Furthermore, he continues to take college courses, mostly online, but struggles with concentration and motivation and without the support and encouragement of his wise, he would fail his courses. He is under psychiatric care and receives psychiatric medications. He indicated that his psychotropic medications have been helpful, but continues to display classic symptoms of PTSD, including frequent intrusive thoughts, nightmares (content is now suppressed, but he still wakes up at agitated, sweating and tired), avoidance behaviors, loss of interest in activities that he used to enjoy, such as socializing, feeling distant from others, being and continue stated irritability and showing other signs of hyperarousal and hypervigilance. He does not like to go out into the community and he insists that his wife drive when they are going somewhere because she will often overreact when he sees trash by the side of the road which might be an IED an idea that he recognizes as irrational, but which is nevertheless unavoidable. He reported experiencing occasional suicidal ideation but has no plan or intention to take his life and suicide did not appear to be in imminent threat. He is now able to get about 5 hours of sleep at night, but still has not for now in the afternoon. His energy level fluctuates, as does his libido. His appetite is not very good, and he only eats once a day. Upon interviewing and examining the Veteran, the VA examiner concluded that his PTSD symptoms include depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including a work or worklike setting, suicidal ideation, neglect of personal appearance and hygiene. In December 2015, the Veteran underwent another VA examination for his service-connected PTSD. The examiner concluded that PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that he continues to be married but that his PTSD symptoms result in "communication barriers," especially with irritability. He endorsed difficulty with isolation and withdrawal, as well as reported stress due to financial stressors, irritability due to sleep disturbances, and fatigue. Furthermore, he reported limited friendships, frequent verbal altercations with strangers, continued irritability, verbal outbursts at home resulting in marital discord, and episodes of anger resulting in property destruction, such as breaking things and punching doors. He attempted to take college courses for welding, mostly online, but quit in 2014 due to concentration, attention, and motivation difficulties. In addition, he reported difficulty sustaining employment and that he began a self-employed lawn care business from 2012 to 2014 but had to cease working due to interpersonal difficulties. The examiner concluded that the Veteran's PTSD symptoms include depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, flattened affect, 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 suicidal ideation. Most recently, the Veteran underwent a VA examination in December 2020. As with his previous VA examinations, the examiner concluded that the PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported no changes in marital status but his marital and family relationships are negatively impacted by PTSD related anger, verbal outbursts, and being more withdrawn. He also noted that he tends to be more isolated, has limited friendships, is more withdrawn, and avoids interpersonal relationships due to mistrust. The examiner noted that the Veteran has experienced difficulties obtaining employment after discharge due to PTSD related difficulties and was unsuccessful completing college courses due to academic difficulties, concentration concerns, and difficulties in classes and with his teachers and other students. Furthermore, he continues medication management with VA for PTSD and depression and his dosage has been increased since his last VA examination due to the severity of the psychiatric disability. Additionally, he was hospitalized in August 2020 for panic attacks. The examiner concluded that the PTSD symptoms include depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, circumstantial, circumlocutory or stereotyped speech, 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 work like setting, obsessional rituals which interfere with routine activities, impaired impulse control, such as unprovoked irritability with periods of violence, spatial disorientation, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. While he reported passive suicidal ideation, the examiner found him to not be current or imminent risk as he denied plans, intent and means. Additionally, the VA examiner found that the depression, symptomatic of PTSD, has reached severity to qualify for its own separate diagnosis based on exacerbation of the Veteran's PTSD. In addition to the VA examination reports, the Board also has reviewed the treatment records and lay statements of record, to specifically include those from the Veteran's wife, recounting his PTSD symptoms and the impact they have had on their family. The Board finds that the preponderance of the evidence is against granting the Veteran's claim for an initial rating greater than 70 percent for PTSD. The record evidence does not support finding that the Veteran experiences total occupational and social impairment due to symptoms of such a severity as required for a 100 percent rating for the service-connected PTSD. As documented in all of the VA examination reports of record, the VA examiners have indicated consistently that this disability causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. These are the criteria associated with a 70 percent rating. Moreover, VA and private medical records reflect no findings of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. While the December 2020 VA examiner noted intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, the majority of the evidence of record indicates a neglect of personal appearance and hygiene as considered by the 70 percent rating criteria. The December 2020 VA examiner noted occasional audio and visual hallucinations; however, the Board finds that the frequency of the hallucinations does not reach the persistent level considered by a 100 percent rating. The Board acknowledges that 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, 442-3 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, then the appropriate equivalent rating will be assigned. Id. at 443, see also Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Applying this analysis to the criteria for the 100 percent rating, it follows that the Veteran would be entitled to that rating if his service-connected PTSD caused total occupational and social impairment, regardless of whether he had some, all, or none of the symptoms listed in the rating formula, and regardless of whether or not his symptoms were listed. The Board finds that the Veteran's disability picture does not more nearly approximate the criteria for a 100 percent rating under DC 9411 at any time during the appeal period. 38 C.F.R. § 4.130. The weight of the evidence shows that the Veteran has not had 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, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name for any period, or any other symptomatology of similar severity. In other words, the Board finds that a 100 percent rating for the service-connected PTSD is not warranted. He otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 70 percent for his service-connected PTSD. In summary, the Board finds that the criteria for an initial rating greater than 70 percent for PTSD have not been met. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. B. Smith, 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.