Citation Nr: 1756764 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 13-00 182 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with depression. ATTORNEY FOR THE BOARD J. Wozniak, Associate Counsel INTRODUCTION The Veteran had active duty service from June 2003 to December 2008. This matter came before the Board of Veterans' Appeals (Board) on appeal from a August 2010 decision of the Winston-Salem, North Carolina, Regional Office (RO). In September 2016 and June 2017, the Board remanded the appeal to the RO for additional development. Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence and conducted any appropriate medical inquiry. The appeal is ready for appellate review. The Veteran was scheduled for a hearing before the Board in March 2016, but failed to appear. No statement of good cause was submitted. Therefore, the Board found in September 2016 that the hearing request was withdrawn as a matter of law. FINDING OF FACT During the period on appeal, the Veteran's PTSD has been shown to be manifested by no more than problems with socialization, anxiety, depression, decreased energy, self-isolation, flashbacks, nightmares, insomnia aided by alcohol, ability to maintain good relationships with his family and girlfriend, and steady employment with no major issues. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent, for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.14, 4.21, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). The Veteran's PTSD is presently evaluated as 30 percent. A 30 percent evaluation for PTSD contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). A 50 percent evaluation contemplates symptoms of 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. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 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; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In May 2010, the Veteran was afforded a VA examination. The Veteran reported having difficulty with anxiety, depression, self-isolation, flashbacks, nightmares, and insomnia. The Veteran indicated that he drinks alcohol late at night to help induce sleep. The examiner noted current employment as a cook with no major problems on the job and mild occupational impairment in reliability and productivity. The Veteran stated that he enjoys taking care of his two pet dogs, writing music, and watching TV. The Veteran indicated that he feels uncomfortable around people and the examiner noted moderate levels of social, recreational, and familial maladjustment. In June 2014 VA treatment records the Veteran indicated that he was currently employed and taking on-line classes. The Veteran indicated feelings of depression and anger which usually caused him to drink. The Veteran stated that he had good relationships with his mother, father, grandmother, and girlfriend. The Veteran's January 2017 examination was cancelled due to failure to appear. No statement of good cause was submitted. The AOJ readjudicated the claim based on the then existing evidence of record. In August 2017, the Veteran was afforded a VA examination. The Veteran reported then working as a full time cook since 2011, doing well on the job, and having a good relationship with his coworkers. The Veteran stated that intrusive thoughts sometimes cause anxiety resulting in an elevated heart rate. The Veteran described his typical mood as laidback and denied feelings of hopelessness, worthlessness, suicidal and homicidal ideation or significant depression. The Veteran also reported two DWIs and drinking heavily until 2014. The examiner noted intrusive and distressing memories, dissociative reactions, avoidance, and sleep disturbance but stated the sleep disturbance included nightmares unrelated to the Veteran's service. The Veteran's girlfriend recalled three shut down instances where the Veteran cried uncontrollably. The examiner indicated the Veteran's alcohol use does not meet the DSM V criteria for a mental disorder diagnosis. During the period on appeal, the Veteran's PTSD has been shown to be manifested by no more than problems with socialization, anxiety, depression, decreased energy, self-isolation, flashbacks, nightmares, insomnia aided by alcohol, ability to maintain good relationships with his family and girlfriend, and steady employment with no major difficulties. Throughout the course of the appeal, the Veteran has not shown to have communication difficulties. Although the Veteran has reported difficulties with socialization and periodic estrangement from others, he is employed as a cook - an occupation that conceivably demands both communication ability and the capacity to do his job on order. These symptoms, which are not inconsistent with those reported in June 2014, are consistent with the currently-assigned rating and akin to those generally descriptive terms as found in the General Rating Formula for Mental Disabilities. Mauerhan, supra. The preponderance of the evidence is against the assignment of a 50 percent rating under Diagnostic Code 9411 for the Veteran's PTSD. ORDER An initial rating in excess of 30 percent for posttraumatic stress disorder, is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs