Citation Nr: 18147389 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 16-39 046 DATE: November 6, 2018 ORDER Entitlement to a disability rating higher than 10 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT For the entire appeal period, the Veteran’s PTSD results in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. CONCLUSION OF LAW The criteria for an initial disability rating higher than 10 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the United States Army from November 1988 to November 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision issued by the Appeals Management Center (AMC) in Washington, DC, which granted service connection for PTSD and assigned a 10 percent disability rating. Increased Rating The Veteran is seeking a higher disability rating for his service-connected PTSD. Disability ratings are determined by comparing a veteran’s present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating 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. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary in order to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD is evaluated as 10 percent disabling. He argues that the RO disregarded the medical opinion of his private treating therapist, who reported that his PTSD causes total impairment, and instead based its decision solely on the VA examination report, which determined that his PTSD symptoms causes only mild impairment. See December 2015, VA Form 21-0958, Notice of Disagreement. Under the General Rating Formula for Mental Disorders, a 10 percent rating is warranted when the Veteran experiences occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 38 C.F.R. § 4.130, DC 9411. A 30 percent disability rating is warranted when there is 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). Id. 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. Id. A 70 percent rating is warranted 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 warranted if 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. When determining the appropriate disability evaluation under the general rating formula, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (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. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F. 3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as 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 under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d 112. The classification outlined in the portion of VA’s Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130. VA implemented DSM-5, effective August 4, 2014. The Secretary of VA, however, has determined that DSM-V does not apply to claims certified to the Board prior to August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The AOJ certified the Veteran’s appeal to the Board in November 2016. Submitted in support of the Veteran’s claim are reports medical opinions from his private therapist dated in 2011 and 2015. The examiner noted that, since his discharge from service, the Veteran has been experiencing intrusive thoughts, traumatic nightmares, avoidance of conversations about his military service, hypervigilance, problems with memory and concentration, and exaggerated startle response. He also reported problems with aggression and heavy drinking. He had a hard time adjusting to civilian life and felt estranged from others. It was noted that he was hypervigilant and prefers to spend time alone. He also had problems going to sleep and staying asleep. He also reported difficulty getting along with his supervisor and co-workers at his job. On mental status examination, the Veteran was described as cooperative. His mood was agitated and his affect was restricted. There was no current suicidal or homicidal ideation noted. The Veteran’s narrative was not always linear and he was difficult to follow at times, but was reported to be fully oriented. The examiner noted that the Veteran’s PTSD symptoms have caused significant disturbances in all areas of his life. She stated that, because of his hypervigilance and isolating behaviors, he was severely compromised in his ability to initiate or sustain work or social relationship. She concluded that due to the severity and chronicity of his PTSD symptoms, the Veteran’s prognosis for recovery was poor. See medical opinions from L. Glogau, MA, LPA, and A. Freeman, PhD of the Psychological Consulting Services dated February 8, 2011 and September 20, 2015. The Veteran was afforded a VA examination for PTSD in October 2015 VA examination, which shows he reported current symptoms including nightmares, avoiding trauma-related activities/people/places, emotional numbness, feeling distant from other people, and developing negative beliefs about himself, others, and the world from the traumas. He also reported sleep disturbance, exaggerated startle response, and hypervigilance. The Veteran reported that since the military he had been working with a masters-level therapist and her supervising psychologist. The examiner referred to a September 2015 letter from the Veteran’s therapist who documented diagnoses including PTSD and “deferred” diagnosis on Axis II to indicate possible concerns about personality disorder, but did not use any objective psychological testing in making the diagnoses. She also did not comment on occupational functioning, but regarding social functioning stated that the Veteran did not socialize and preferred to spend time alone. The examiner noted the therapist’s statement that the Veteran’s prognosis for recovery was poor, although she documented no history of his participating in evidence-based psychotherapy for PTSD and had not seen him since June 2015. The therapist also gave a GAF of 37 and considered the Veteran to be “totally and permanently disabled,” but provided no information about occupational functioning or impairment as rationale for this assertion, which contradicts a previous statement that he was employed with no disciplinary problems and only mild to moderate impairment at work. Currently, the Veteran reported relatively mild social and occupational impairment related to symptoms. He reported spending time alone and not having close friends, although he had good friends before the military. The Veteran reported overall fair to good relationships with family. Regarding occupational functioning, he stated that he has worked at his current job for 17 years and works alone which is helpful as he can become anxious and irritated when around many other people. The Veteran described having mild depression and anxiety symptoms. He also reported problems with sleep disturbance, but did not indicate that sleep disturbance impacts social or occupational functioning. The examiner also administered psychological tests, to include the PTSD Checklist Measure and the Personality Assessment Inventory (PAI). As a result, based on records reviewed, the clinical interview, and psychological testing results, the examiner made an AXIS I diagnosis of PTSD and concluded that based on current available evidence. The Veteran was assessed as having occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. No other mental disorder was diagnosed. Review of the remainder of the claims file shows very few treatment records pertaining to the Veteran’s PTSD have been associated with the claims file since the VA examination. Applying the Veteran’s psychiatric symptomatology to the rating criteria noted above, the evidence does not support the assignment of an evaluation greater than 10 percent. In general, the Veteran functions independently, appropriately, and effectively and his symptoms do not interfere with his activities of daily living. To the degree the Veteran’s PTSD makes social interactions complicated, the evidence shows he has reported positive relationships with family members. In addition, despite his PTSD symptoms the Veteran has been able to maintain his work relationships sufficiently and remains stable in his employment for the past 17 years. There are no indications of significant decreases in work efficiency as a result of his PTSD symptoms. There is also no evidence of suspiciousness, panic attacks or memory loss (such as forgetting names, directions, recent events). See Vazquez-Claudio supra. In the end, while the evidence clearly demonstrates that the Veteran’s PTSD symptoms have been continuous, they are not equivalent, in frequency, duration or severity, to warrant the next higher evaluation of 30 percent. Careful consideration has also been given to the opinion from the Veteran’s private therapist. However, she concluded that the Veteran’s symptoms resulted in total occupational and social impairment, but did not otherwise include examination findings or psychologic testing results that would tend to support this conclusion. Moreover, he has was working at the time of the evaluation, and continued to be employed, which is compelling evidence that he is not totally and permanently disabled. After weighing all the evidence, the Board finds greater probative value in the VA opinion, and, in light of the other evidence of record, it is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran’s position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). While the private therapist’s medical conclusions cannot be ignored or disregarded, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a medical opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). Based on the aforementioned discussion, the private medical opinion, while not discounted entirely, is entitled to less probative weight in view of the remaining evidentiary record. Accordingly, the Board finds that the Veteran’s impairment due to PTSD is most consistent with a 10 percent rating and that the level of disability contemplated in DC 9411 to support the assignment of a 30 percent or rating or higher is absent. (Continued on the next page)   Finally, while the Veteran clearly takes issue with the RO’s handling of his claim, it is emphasized that all appeals that come before the Board are considered on a de novo basis. In other words, all medical and lay evidence of record has been considered by the Board in deciding the Veteran’s claim. Additionally, the Veteran’s private therapist did not reply to VA’s September 2015 and in December 2015 request for the Veteran’s actual clinical records except to notify VA in December 2015 that he had been in treatment since January 2011, and was most recently seen in October 2015. The therapist confirmed the diagnosis of severe PTSD and noted the Veteran continued to struggle with thoughts about his combat experiences and nightmares. The Veteran was provided written notice in December 2015 that the RO was not in receipt of records from his therapist and that it was ultimately his responsibility to provide evidence to VA. However, he has not provided these records himself and the Board cannot force him to provide the relevant information. While the VA has a duty to assist the Veteran, the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Given that the Board made reasonable efforts to obtain the private medical records and neither the therapist nor the Veteran have provided this evidence, the Board has made its decision based upon the evidence already of record. 38 C.F.R. § 3.159 (c)(1) (providing that reasonable efforts to obtain private records will generally consist of an initial request for records and at least one follow-up request). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.R. Bryant