Citation Nr: 18143413 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 16-26 735 DATE: October 19, 2018 ORDER Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT PTSD is manifested by occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from November 1969 to September 1972, and from January 1978 to January 1982. This matter come before the Board of Veterans’ Appeals (Board) on appeal of an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Increased Ratings PTSD The RO granted service connection for PTSD in an October 2015 rating decision, and assigned a 30 percent disability rating pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran seeks a higher initial evaluation. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides that a 30 percent rating is warranted when the psychiatric disorder results in 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). A 50 percent rating is warranted when the psychiatric disorder results in 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. A 70 percent rating is warranted when the psychiatric disorder results in 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. A 100 percent rating is warranted when the psychiatric disorder results in 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. Id. The rating formula is not intended to constitute an exhaustive list, but rather is intended to provide 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of occupational and social impairment, and assign an evaluation based on the overall disability picture presented. However, the impairment does need to cause such impairment in most of the areas referenced at any given disability level. Vazquez-Claudio v. Shinseki, 713 F. 3d. 112 (Fed. Cir. 2013). In April 2015, Dr. HJ, a private psychiatrist, submitted a copy of the Veteran’s initial psychiatric assessment for March 2015. Memories and flashbacks of an in-service trauma, according to the Veteran, still pervaded his thoughts, to the degree that he avoided watching television news accounts. The Veteran reported feelings of isolation, anger, and frustration. He also suffered from sleep difficulties, depression, and had had suicidal thoughts. Specifically, the Veteran endorsed disturbing memories; thoughts and images of the in-service traumatic event; and repeated disturbing dreams and nightmares. Additionally, he reported difficulties being with other people and concentrating. The Veteran derived little pleasure and intense depression after his divorce, feeling like a failure. Other associated issues included: restlessness; irascibility; decreased libido; and fatigue. Dr. HJ diagnosed PTSD and major depressive disorder, moderate (MDD). The Veteran’s advised treatment plan consisted of a combination of medication and psychotherapy. In October 2015, the Veteran was afforded a VA initial PTSD examination. The examiner reviewed the claims file; considered the Veteran’s subjective impressions; and conducted a diagnostic evaluation. The examiner provided a diagnostic impression of PTSD under the applicable DSM-5 criteria. The examiner did not provide any other psychiatric diagnostic impression. The examiner specifically opined that the Veteran’s level of social and occupational impairment was best summarized as: occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran endorsed anxiety and chronic sleep impairment. The examiner observed that the Veteran arrived promptly, displayed a full range of affect, and appeared mildly depressed. Nevertheless, the examiner noted that the Veteran did not report a “clinically significant level of depression.” Moreover, he was fully oriented and exhibited no signs of disordered thinking. A review of the VA treatment records reveals that the Veteran did not seek treatment or consultation for PTSD and/or other psychiatric disorders. In November 2015, Dr. HJ submitted treatment records, indicating that he had treated the Veteran for 8 months. A review of Dr. HJ’s records reveals that the Veteran had been prescribed medication and endorsed anxiety, difficulty sleeping, and feelings of depression. The Veteran also reported that he was unemployed. Objective findings included cooperative behavior; blunted affect with psychomotor retardation; spontaneity; and no pressurized speech. Dr. HJ indicated that the Veteran showed no flight of ideas or thought, but exhibited signs of thought blocking, and delayed thoughts. There was an absence of suicidality, homicidal thought, paranoia, hallucinations, and delusions. Moreover, the Veteran indicated that he had no memory problems, and presented as alert and oriented. Again, Dr. HJ provided diagnostic impressions of PTSD and MDD, moderate. To receive a disability rating in excess of 30 percent under Diagnostic Code 9411, the evidence would need to show that PTSD results in 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. See 38 C.F.R. § 4.13, Diagnostic Code 9411. Such is not shown. There is no showing of memory loss; the Veteran hs as in fact denied this. He has been alert and oriented, and he continues to communicate rather well. The Veteran has suffered damage to his interpersonal relationships, as shown by his divorces, but he has also been able to form other relationships. Although unemployed since 2012, this was due to economics rather than his disability. No panic attacks or periods of increased symptoms were reported. He can be meticulous and particular with how things are done, but functions within those parameters. Overall, he functions well. Therefore, the Board finds that the preponderance of evidence is against assigning a disability rating in excess of 30 percent for the Veteran’s PTSD, and there are no doubts to be resolved. See 38 U.S.C. § 5.107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel