Citation Nr: 18142480 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 13-10 372 DATE: October 16, 2018 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with major depressive disorder is denied. FINDING OF FACT For the entire appeals period, the Veteran’s PTSD with major depression was manifested by occupational and social impairment with reduced reliability and productivity, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships; deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood were not shown at any time. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for service-connected PTSD with major depressive disorder have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1988 to May 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Criteria Disability evaluations are determined by comparing a veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board must also fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The January 2012 rating decision on appeal increased the rating of the Veteran’s service connected PTSD with major depressive disorder from 10 percent to 30 percent disabling from the date of the claim for increase, May 19, 2011. The Veteran disagreed with the rating. Subsequently, a September 2017 rating decision granted a 50 percent rating from May 19, 2011. Under the General Rating Formula for Mental Disorders, Diagnostic Code 9411, a 50 percent rating contemplates 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; and difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are 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. Finally, the criteria for a 100 percent rating are 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 ability 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. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term “such as” in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to 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 (2002). Evidence On VA examination conducted in July 2011, the Veteran reported that he and his wife assisted in caring for his three grandchildren. He reported that he retired from the Army in 2010 when it became apparent that if he stayed in he would be deployed to Afghanistan. He was unwilling to endure another deployment and separation from his family. Following service, he worked for a company locating underground utility lines in preparation for construction or maintenance activities. He was discharged from that position three months prior to the examination when he missed a fiberoptic line and crews dug into it, breaking the line. The Veteran was currently enrolled at the University of Denver, where he took one course online and attended a class Tuesday and Thursday evenings. The Veteran was involved in feeding and caring for his grandchildren, and doing chores around the house, including dishes and laundry. He sometimes helped his wife with her business. The Veteran reported having trouble staying focused when doing his homework. He sent himself text messages to help with memory problems. He sometimes forgot to turn off the water in the kitchen sink. The Veteran reported that he would isolate himself and avoided interacting with people, including people in class at the University. He did not feel particularly distressed about being in classes, but he sat apart from other people to avoid contact or interaction. He was often verbally unresponsive to his wife. The Veteran reported sleep problems and loss of appetite. He described himself as being depressed every day, all day. The Veteran denied ever having any suicidal ideation or intention to harm himself and specifically denied any thoughts of harming other people. On examination, his speech was clear. He avoided eye contact. The Veteran was over talkative but at the same time seemed rather distant and disengaged. His affect was flat and he appeared distracted and depressed. The Veteran was attentive and cooperative throughout the examination. His concentration, continuity of thought, and remote, recent and immediate memory were all good. The examiner noted occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to signs and symptoms, but that the Veteran had generally satisfactory functioning. The examiner noted the Veteran’s difficulty with decline in concentration and problems with memory. The Veteran was able to maintain his personal hygiene, and he did not have any inappropriate behavior. Thought processes, social functioning, and communication were not impaired. The Veteran’s employment was impacted due to problems with memory and concentration. An October 2014 treatment record noted that the Veteran participated in caring for grandchildren and taking them to the park. He was planning to learn to restore antique furniture and to become involved in volunteer work and developing his ministry with his wife. On a July 2015 treatment note the Veteran reported that work demands had increased and his course assignments were more rigorous this semester. He recognized that he had had very little motivation to complete assignments in a timely manner and often had to stay late at work. The Veteran had lately made an effort to complete all of his tasks at work in lieu of carrying assignments over to the next day. His thought content was linear and goal directed, and there was no evidence of psychosis. The Veteran denied suicidal ideation, homicidal ideation, and aggressive thoughts. His judgment was good and his insight fair. On an October 2016 treatment noted, the Veteran noted that he and his wife were currently taking care of five of their grandchildren. He noted he had family that lived in Arkansas and friends in Colorado. He and his wife were both in school. In January 2017, the Veteran reported that he worked 12 -14 hours per day, then came home and did family activities, church on the weekends, and kid activities. The Veteran reported that he enjoyed fishing and walking outside, but that there was no time to partake in such activities because “there is so much stuff to do.” The Veteran was alert and oriented. He was neat and well-groomed. His speech was normal in rate and tone. His mood was sad and affect congruent to mood. His thought process was logical and goal directed. No psychosis or hallucination were observed or reported. The Veteran denied suicidal or homicidal ideation. On VA examination in May 2017, the examiner noted that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, though he was generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran was noted to be employed servicing vending machines. The Veteran described isolating himself. He was in school but had difficulty completing assignments. The examiner noted depression, anxiety, mild memory loss, disturbances of motivation and mood, and difficulty adapting to stressful circumstances, including work. The Veteran was described as fully oriented, cooperative, and casually dressed in work attire. He did not appear to present a danger to himself or others. Analysis The Board finds that the Veteran’s PTSD with major depression has been properly evaluated at the 50 percent level throughout the appeals period. It has been manifested by symptoms such as mood disturbances including depression and anxiety, sleep impairment, memory problems, and social isolation. The evidence demonstrates disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. A rating in excess of 50 percent is not warranted at any time. Throughout the appeals period, the Veteran was alert, well oriented, and well groomed. Speech was normal, affect was congruent with content discussed, and he showed no psychotic symptoms. The Veteran has never manifested any suicidal or homicidal ideation. The Veteran’s symptoms have not more nearly approximated the criteria for a 70 percent rating, and the evidence is not approximately evenly balanced. The VA examiners did not indicate symptoms listed in the criteria for 70 percent rating or their equivalent. The Veteran has been enrolled in school throughout the appeals period, and has been working for much of the period. Throughout the period, the Veteran lived with his wife and other family members, and was noted to actively participate in the care of his grandchildren. He also assisted his wife in her business. Based on the evidence, the Board finds that, even when reasonable doubt is resolved in his favor, the Veteran’s PTSD with major depression does not more nearly approximate occupational and social impairment, with deficiencies in most areas. Thus, the next higher rating of 70 percent is not warranted at any time during the appeal. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.130; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Hart v. Mansfield, 21 Vet. App. 505 (2007). There are no additional expressly or reasonably raised issues presented on the record. . D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel