Citation Nr: 18146621 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-38 263 DATE: October 31, 2018 ORDER Entitlement to an initial increased rating above 50 percent for post-traumatic stress disorder (PTSD) is denied. FINDING OF FACT Since August 22, 2013, the Veteran’s PTSD manifested with occupational and social impairment with reduced reliability and productivity but not with occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to an initial increased rating above 50 percent for post-traumatic stress disorder (PTSD) have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from December 1964 to January 1970 including combat service in the Republic of Vietnam. He was awarded the Purple Heart Medal and Combat Infantryman’s Badge. This appeal comes to the Board of Veterans’ Appeals (Board) from a November 30, 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Duty to Notify and Assist Neither the Veteran nor his representative identified any shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board thus finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced because of the Board’s adjudication of the claims below. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information, lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 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. 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. Id. 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. Id. Under the General Formula, a 50 percent rating is assigned 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. A 70 percent rating is assigned 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 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. Id. A 100 percent rating is assigned when there is 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. During the course of this appeal, the rating criteria were revised to update references pertinent to the American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders (5th ed.) (DSM-5). Those changes included removal of the multi-axis system, Global Assessment of Functioning (GAF) score method of assessment. No additional substantive revisions have been made to VA’s General Rating Formula for Mental Disorders. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). PTSD VA Outpatient records show that the Veteran attended group therapy for PTSD from June 2014 and continued to do so throughout this appeal period. A mental health note from June 16, 2014 reported that the Veteran had complaints of “trauma related anxiety symptoms, depressive symptoms, anger/irritability, and sleep difficulties.” The Veteran also reported: hopelessness, lack of interest, insomnia, loss of energy, feelings of guilt, difficulty concentrating, intrusive thoughts, nightmares, dissociative reactions, intense psychological distress, avoidance of internal reminders, poor memory of the trauma, negative beliefs, distorted cognitions, negative emotions, diminished interest, detachment, difficulties with positive emotions, hypervigilance, and elevated startle response. He did not experience any psychotic symptoms such as delusions or hallucinations; he reported panic episodes mostly triggered by crowds and public places. He was not suicidal or homicidal, but did report some passive suicidal thoughts when he was in his 20s and while using drugs but without plan or intent. The Veteran did admit to previous substance abuse. His mental status examination noted that he was appropriately groomed, motor activity was normal, he had a good attitude, normal speech, thought was logical and goal oriented, perception was normal, his mood was “okay;” he was oriented, had good attention, good insight, and good judgment. The Veteran reported that he had retired from his occupation as a maintenance mechanic after 30 years of work but was having difficulty adapting to a new routine. He declined any medication. The examiner concluded that his symptoms were consistent with PTSD and depression, and that his depressive symptoms seemed related to “functional impact of PTSD” as well as a major life change—retirement. It was recommended that he continue group therapy. A C&P examination was performed on November 24, 2014. A psychologist diagnosed PTSD based on stressors from his service in the Republic of Vietnam where he was subject to enemy fire, witnessing his friends suffer casualties in combat, and sustaining a serious injury from a land mine. The psychologist assessed the overall symptoms as causing “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.” Generally, the psychologist found that the Veteran functioned satisfactorily. At that time, he and his wife were raising their two grandchildren, and he was attending group therapy sessions but not taking medication. The Veteran’s symptoms were: depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances, hypervigilance, flashbacks, irritability, social withdrawal, and disturbing memories. He denied suicidal or homicidal ideations. Behavioral observations were as follows: The claimant presented as an older veteran who was inquisitive about the process and answered all questions asked in an apparent honest and credible manner. His speech was of normal rate, rhythms, and tone. Facial expressions were consistent with content. Thought processes were linear and logical. He was well groomed and displayed depressed affect and poor eye contact. There were no other unusual behavioral oddities noted. The psychologist recommended that he seek follow-up treatment and be put on medication. The Veteran was not found to be a danger to himself or others. The Veteran filed an NOD on August 14, 2015 requesting a higher rating for his PTSD. He stated that his PTSD should be higher because he was an infantryman in both Vietnam and in the Demilitarized Zone (DMZ) in the Republic of Korea. He also noted his Purple Heart and Combat Infantry Badge. He filed another statement on September 16, 2015 reiterating that he served in Vietnam and the DMZ after Vietnam. He said that since leaving service most of his years were “pretty miserable.” A primary care note from June 13, 2016 revealed the Veteran still had issues with PTSD; he reported nightmares, irritability, avoidance, hypervigilance, easy startle response, interrupted sleep, depression, lack of motivation, feeling hopeless, and low energy. He said he needed to be “under the influence” to engage with others and that he has 6-7 beers a day and that he smokes marijuana 2-3 times a day. He was not suicidal or homicidal. His mental status exam showed he had appropriate appearance and hygiene, motor activity was normal, attitude was cooperative with good eye contact, speech was normal, thought was logical and goal directed, he did say he has visual hallucinations of “rats,” his mood was anxious, he had a flat affect and seemed nervous; he was fully oriented. The substantive appeal was filed on August 1, 2016. The Veteran asked that the Board consider his service in both Vietnam and then Korea. He explained that he was severely wounded in Vietnam and needed a blood transfusion which was the cause of his Hepatitis C. Due to the transfusion he lost a lot of jobs and was sick for a long time; and he also says the shrapnel wound he received cased a traumatic brain injury. He noted that he continued participation in group therapy. On February 10, 2017, the attending VA psychiatrist noted that the Veteran reported no suicidal or homicidal ideations. He was noted to have a history of coping well with stress. He had a good family relationship, was responding positively to medication, had a positive outlook on life, strong religious beliefs, and was in a good financial situation. He was still having anxiety and nightmares at times, but he was sleeping and eating better with medication and cessation of alcohol use. Analysis In considering all the evidence the Board finds that the Veteran is best rated at 50 percent disabling for his PTSD. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Veteran is receiving a 50 percent rating because his symptoms of flattened affect, panic attacks, difficulty establishing and maintaining relationships, chronic sleep impairment, depression, anxiety, disturbed motivation and mood, and suspiciousness are more closely associated with a 50 percent evaluation than a higher evaluation. At the beginning of the appeal period, he once mentioned suicidal ideations but with no plan or intent and no requirement for intervention. The ideations were not repeated since participation in therapy. He does not have panic attacks more than once a week and understands complex commands. His speech is normal, memory is in-tact, and does not have impaired judgment or thinking. As the Veteran retired voluntarily from his occupation, there are few reports by the Veteran or observations and opinions by therapists and examiners regarding any potential impairment of his occupational skills. However, observations of features such as cognition, communications, ability to leave the home independently and manage financial affairs shows that any work deficiencies would be at a moderate level of severity. The VA examiner found that his overall disability picture caused occasional reduced reliability and productivity in occupational and social tasks. 38 C.F.R. § 4.130, Diagnostic Code 9411. A rating of 70 percent requires deficiencies in most areas such as work, family relationships, judgment, thinking, or mood. Symptoms for a 70 percent evaluation include suicidal ideation, obsessional rituals, intermittently illogical speech, near-continuous panic attacks, impaired impulse control, spatial disorientation, neglect of appearance, difficulty adapting to stress, and inability to establish and maintain relationships. Id. A 100 percent rating is for veterans with total occupational and social impairment for gross impairment in thought and communication, delusions and hallucinations, grossly inappropriate behavior, danger to himself and others, disorientation, and memory loss. Id. Although the Veteran has reported some hallucinations, anger issues, and at one time struggled with stressful situations, his most recent primary care visit showed that he was much better with stress and had a strong family relationship. He has irritability control issues but he is non-violent, and the examiners have all found he is not threat to himself or others. Throughout the appeal period he has displayed good judgment, logical thought, clean appearance, good memory, and the ability to take care of himself and his grandchildren. His ability to take care of others and function generally, including in stressful situations, are indicators that he has not become so impaired that he has deficiencies in most areas or is totally impaired. He has very strong family and social support. Since the start of this period on appeal the Veteran has displayed symptoms most closely associated with a 50 percent rating. He has not alleged or displayed worsening symptoms, and, in-fact, his symptoms have improved in some areas. Based on the totality of the evidence the Board does not find that a rating higher than 50 percent is warranted. The Board has considered the Veteran’s combat service in Vietnam and Korea along with the Purple Heart Medal and Combat Infantry Badge and recognizes the difficult and honorable service the Veteran provided his country. Increased rating claims consider the current level of occupational and social impairment and the nature, frequency, and severity of the symptoms during the period on appeal. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Harner, Associate Counsel