Citation Nr: 22010561 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 15-17 797 DATE: February 24, 2022 ORDER A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from December 1, 2008 to November 21, 2014 is denied. FINDING OF FACT From December 1, 2008 to November 21, 2014, the evidence demonstrates that the Veteran's PTSD manifested by passive suicidal tendencies and occupational and social impairment with deficiencies in most areas; his anxiety disorder was not more nearly manifested by disability analogous to total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD from December 1, 2008 to November 21, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1989 to April 1990, from November 1990 to November 1991, and from July 1993 to May 1996. The Veteran's PTSD claim was remanded for additional development in November 2018. In an April 2020 decision, the Board granted a rating of 70 percent for PTSD from December 1, 2008 to November 21, 2014, but not higher. The Veteran appealed the Board's April 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the Veteran and VA's Office of the General Counsel. The Court's order vacated and remanded, in part, the April 2020 decision of the Board to the extent that it denied entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from December 1, 2008 to November 21, 2014. In light of the Court's order granting the parties' JMPR, the Board will readjudicate the appeal. 1. A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from December 1, 2008 to November 21, 2014. The Veteran believes that a disability rating of 100 percent for PTSD from December 1, 2008 to November 21, 2014 is warranted. The Veteran's claim for an increased rating claim was received December 1, 2009. The Board notes that the Veteran's PTSD is rated at 100 percent, effective November 21, 2014. Thus, the Board will address the period from December 1, 2008 (one year prior to the Veteran's increased rating claim) to November 21, 2014. The Veteran's PTSD are rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of particular symptoms. Under the General Rating Formula for Mental Disorders, 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 that 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. A 100 percent rating 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 Code 9411. The symptoms listed in General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The "such symptoms as" language of the diagnostic codes for mental disorders in 38C.F.R. §4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30 percent evaluation from a 50 percent evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Factual History The Veteran was afforded a VA psychiatric examination in May 2009. With respect to frequency, duration, and severity, the Veteran reported he has frequent psychiatric symptoms which are almost continuous of moderate severity and have lasted for at least several years. The examiner noted that there were no current or present treatment records that would be helpful. The Veteran reported symptoms that included nightmares, avoidance, social isolation, lost interest, insomnia, irritability or angry outbursts, pronounced startled response, difficulty concentrating and recurrent and intrusive distressing recollections and recurrent distressing dreams. Additionally, the Veteran reported chronic feelings of depression with low motivation, decreased appetite, low energy, tearfulness and ongoing and passive suicidal ideation without intent or plan. The Veteran reported drinking excessively several times a week. The Board notes that March 2013 treatment records show the Veteran was treated for PTSD. The Veteran denied suicidal ideation but at times had thoughts without a plan, although he denied intent. The Veteran reported binge drinking several times a week and expressed that he was aware that he drank too much. The Veteran denied having any manic behaviors; however, he reported feeling paranoid and endorsed visual hallucinations several times a week. He reported feeling that there was a man in a turban looking at him and seeing a helicopter flying overhead. The Veteran was prescribed medication but noted that as his symptoms persisted, he was scheduled for psychotropic medications. However, at subsequent March 2013 and May 2013 psychiatry follow-up visits, the Veteran denied auditory or visual hallucinations. The examiner noted there was no evidence of psychosis or of dissociation on the examination. The Veteran appeared well-oriented, was able to concentrate well throughout the visit and his sensorium was clinically clear. The Veteran reported that his mood had been mildly to moderately irritable and mildly depressed intermittently, but not persistently. His thought process was entirely was entirely clear and well organized. The Veteran denied having any thoughts of harming himself or anyone else. He described being defensive but not paranoid or delusional. The examiner observed the Veteran was fully alert and did not appear to be at all sleepy or sedated. The Veteran was well-oriented, was able to concentrate well throughout the visit and his sensorium was clinically clear. At the August 2013 psychiatric visit, the Veteran reported improvement with good symptom control overall and that he has no uncontrolled psychiatric symptoms. He reported his mood had improved. He described his mood as "much better" and "pretty much ok" and he has not had any negative or suicidal thoughts. He described having good anxiety control, being calmer, "less stressed" and less apt to become frustrated or aggravated, with no interval of angry outbursts. He reported that he cut back on his drinking and was only drinking twice a week. The Veteran stated that he had decreased how much he watches the news, which tended to aggravate him. He stated: "I feel more at ease at night." He reported sometimes having intrusive thoughts, but overall was sleeping better and had fewer nightmares taking prazosin and usually sleeping from about midnight (after his wife arrived home from work) until 7:30 AM. The Veteran reported that he and his wife had been getting along very well and spending time doing a number of wholesome hobbies and interests, including gardening, drawing and painting and getting plenty of exercise including playing basketball, walking, light resistance training using dumbbells (but he says no heavy lifting with his back pain) and sometimes push-ups and sit-ups. Additionally, he reported having no other recent symptoms or concerns. The September 2018 private psychology examiner rendered an opinion on the Veteran's level of functioning between December 1, 2009 through November 21, 2014. The examiner noted the Veteran has a documented history of psychological disability. Additionally, the Veteran has a history of alcohol abuse and cannabis abuse, however, added that the pattern of substance use and abuse appeared to have been an attempt to cope with the stresses of life and he would have his current mental health disorder even if he had never used or abused substances. The examiner observed that the Veteran's presentation was consistent with moderate-to severe-psychopathology, which, historically had been controlled and contained by psychoactive medications and a low stress environment. For the period from December 1, 2009 through November 21, 2014, the examiner noted that historically, the Veteran has been diagnosed with PTSD, depression, ethanol alcohol (ETOH) abuse and chronic pain. Additionally, the examiner diagnosed the Veteran with PTSD, major depressive disorder, alcohol use disorder, cannabis use disorder and insomnia disorder insomnia. The private examiner described the Veteran's psychological disability as permanent in duration, rendering him moderately-to-markedly disabled for the period in question. With respect to frequency, duration, and severity, the Board acknowledges the March 2013 mental intake visit where the Veteran reported feeling paranoid and endorsed visual hallucinations several times per week. However, the Veteran's other mental health evaluations during that same month and elsewhere during the time period on appeal reflect that the Veteran did not exhibit persistent delusions or hallucinations, as the Veteran did not exhibit signs of formal thought disorder and denied having visual or auditory delusions or hallucinations at other mental health visits. See March 2013 Mental Health Note: August 2013 Psychiatry Note. The Board finds that the preponderance of the evidence is against a finding that the Veteran's psychiatric disability shows total occupational and social impairment sufficient to warrant a rating of 100 percent. The evidence does not demonstrate symptoms such 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, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, or any symptomatology otherwise consistent with total occupational and social impairment. (Continued on the next page) In light of the foregoing, the Board finds that a rating in excess of 70 percent is not warranted. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jordan, Jacquelynn 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.