Citation Nr: 18146627 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-10 772 DATE: October 31, 2018 ORDER Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s PTSD is manifested by symptoms which caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; the symptoms do not cause reduced reliability and productivity, deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska, which, inter alia, granted service connection for PTSD and assigned an initial 30 percent rating, effective August 27, 2013. 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. The Veteran seeks entitlement to an initial rating in excess of 30 percent for PTSD. Disability evaluations are determined by the application of a schedule of ratings, which is based on the Veteran’s average impairment of earning capacity resulting from such disabilities. 38 U.S.C. § 1155, 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where a claimant appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether the [initial] rating on appeal was erroneous . . .” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 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 the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Veteran’s PTSD has been rated under the criteria contained in the General Rating Formula for Mental Disorders. Under those criteria, a 30 percent rating will be assigned when there is evidence of 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 normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating is warranted for 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assigned when there is objective evidence demonstrating 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that 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. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 118. The Federal Circuit indicated that “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. The nomenclature employed under § 4.130 is based upon the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). The Board notes that effective August 4, 2014, VA implemented rules replacing references to the DSM-IV with the DSM-5. The DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The Veteran’s appeal was certified to the Board in July 2015. Consequently, the DSM-5 is for application to his appeal. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the claims file does not contain post-service medical records for mental health evaluation or treatment. Although the Veteran reports receiving medical care at the VAMC, he has indicated that none of that treatment was for his service-connected PTSD. According to the February 2015 statement of the case (SOC), the RO reviewed records from the VAMC electronically and confirmed that they contain no evidence of treatment for PTSD. Although those records are not associated with the claims folder, the Veteran has stated explicitly that he has not received mental health evaluation or treatment, other than the September 2014 VA examination discussed below. During the examination, the Veteran stated [I’ve had] no mental health treatment anywhere, ever. I’ve had an aversion to it, not thinking it was beneficial. I’ve tried to resolve things myself. VA has a duty to obtain records which are relevant to a Veteran’s claim. 38 C.F.R. § 3.159(c); McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008) (noting that Congress has explicitly defined VA’s duty to assist in terms of relevance). The U.S. Court of Appeals for Veterans Claims (Court) has held that “[r]elevant records…are those that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran’s claim.” Because it is clear that the outstanding clinical records from the VAMC are not relevant to the issue adjudicated in this decision, a remand to obtain these records would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. Thus, the Board will proceed with consideration of the claim. The Veteran was afforded a VA PTSD examination in September 2014. With regard to marital and family relationships, the Veteran reported that he had been married 2 times. He had married his current spouse in 1992 after a five year relationship. The examiner noted that the Veteran identified no major marital upheavals, although he reported that he and his spouse had some issues. His spouse thought he was too harsh with his grandchildren. The Veteran stated that he has 3 adult children, two sons and a daughter. He reported having a close relationship with his daughter. The Veteran also reported having a relationship with his adult grandson who was currently residing in his home. He also noted regular contact and a “pretty close” relationship with his brother. Occupationally, the Veteran had been employed doing various odd jobs after service. He was then employed full-time for 7 years working in a mine and for 22 years working full-time as a supervisor for his local government before he retired. Since that time, the Veteran had built a commercial building for his spouse’s retail business as well as a cabin on his property that he rented during the summers. His typical day consisted of building maintenance, engine repair and maintenance. He enjoyed buying cars online and reselling them in Alaska. He hunted and butchered moose and harvested from his garden. The Veteran was also a recreational pilot. On physical examination, the Veteran was found to be pleasant and cooperative, although the examiner noted that the Veteran became tearful when recounting current symptoms. The Veteran described his sleep as good, with general good onset and maintenance. He reported averaging 7-8 hours of sleep nightly without the use of sleeping aids. He noted occasional recurring dreams of military stressors which awakened him overnight. The Veteran reported intrusive thoughts, mostly at night, but he did not report full revivifications or flashbacks. He reported episodic triggers with motor vehicle accidents, exaggerated startle response, and a short temper. He endorsed emotional distancing and episodic periods of emotional numbing. He noted that he avoided people and crowds and would not go to concerts, movies, or busy restaurants. The Veteran did not have difficulty remembering military stressors, although he noted that his concentration was “not that great.” He reported having trouble keeping focused. He also noted living an isolated life for four years after he separated from service and enjoying being “out in the middle of nowhere.” The Veteran’s PTSD symptoms included depressed mood, anxiety, and suspiciousness, recurrent and intrusive distressing recollections and dreams, psychological distress at exposure to cues resembling traumatic events, avoidance of distressing memories or external reminders of those memories, and exaggerated negative beliefs. Additionally, the Veteran experienced distorted cognitions about traumatic events, negative emotional state, diminished interest in significant activities, feelings of detachment from others, inability to experience happiness, irritable behavior, hypervigilance, exaggerated startle response, and problems with concentration. With regard to effects of PTSD on occupational and social functioning, the examiner concluded that the Veteran’s symptoms caused occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Applying the criteria set forth to the facts in this case, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 30 percent for the Veteran’s service-connected PTSD. The record does not demonstrate that the Veteran’s overall disability picture is consistent with or more nearly approximates the criteria required for a higher rating. In this regard, the Veteran’s symptoms did not cause reduced reliability and productivity, deficiencies in most areas, or total occupational and social impairment. The Veteran contends in his appeal that he has flattened affect, difficulty understanding complex commands, impairment of short term memory, impaired judgment, disturbances of motivation and mood, no social relationships, and a strained relationship with his wife. See Veteran’s appeal dated March 23, 2015. The only evidence of the Veteran’s PTSD in the claims file is the claim, notice of disagreement, the Veteran’s statement in his appeal, two statements describing in-service stressors, and the VA examination. After thorough review of the Veteran’s statements in the claims file and his statements to the VA examiner, the Board finds the VA examination and the statements contained therein to be more probative of the Veteran’s current disability picture. Specifically, as set forth in more detail above, the evidence in the VA examination shows that the Veteran did not exhibit flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; or impaired abstract thinking. The Veteran was able to answer all of the examiner’s questions and give a detailed personal, occupational and mental health history. There were no reports of frequent panic attacks. He did not exhibit memory problems, difficulty with speech or cognition, or impaired judgment or abstract thinking. The Veteran noted that he had trouble with focus and concentration, however he did not report memory impairment. The Veteran noted that he experienced episodic periods of emotional numbing, however he displayed emotion during the examination when he became tearful recounting current symptoms. Furthermore, the Veteran reported hobbies, such as hunting, digging clams, and enjoying the backcountry. He noted that he was a recreational pilot and loved to fly. The Veteran also reported building structures on his land and spending a significant portion of his time fixing things. Additionally, although the Veteran reported being married twice and having some issues in his current marriage, no major marital upheavals were identified. He also reported having a close relationship with his daughter and his brother, in addition to a relationship with his grandson. Furthermore, he maintained full-time, consistent employment for 22 years before he retired. The Board has carefully considered the Veteran’s contention that he exhibits the symptoms delineated in the rating criteria for a 50 percent rating such as impaired memory and judgment and disturbances of motivation and mood. The Board has carefully considered all of the Veteran’s PTSD symptoms and how they affect his level of occupational and social impairment. As explained above, the Veteran’s ability to maintain multiple long term relationships, including a close relationship with his daughter, and his ability to successfully participate in occupational activities such as constructing a commercial retail building, buying and selling automobiles, constructing and maintaining a summer rental property, weighs against a finding that his PTSD symptoms overall produce reduced reliability and productivity. Rather, the record reflects that the Veteran generally functions satisfactorily and his PTSD symptoms produce no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In summary, the Board has considered all of the Veteran’s PTSD symptoms that affect the level of occupational and social impairment. After so doing, the Board concludes that the initial 30 percent rating assigned is appropriate and that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent. The Veteran and his attorney have not raised any other issues with respect to the increased rating claim, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Ruddy, Associate Counsel