Citation Nr: 18147800 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 17-20 184 DATE: November 6, 2018 ORDER Entitlement to an initial rating in excess of 30 percent, prior to March 20, 2017, and in excess of 70 percent, effective from March 20, 2017, for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. Effective prior to March 20, 2017, the Veteran’s PTSD symptoms were productive of no more than occupational and social impairment with occasional decrease in work efficiency, and intermittent periods of inability to perform occupational tasks, although generally functional satisfactorily, due to symptoms such as anxiety, chronic sleep impairment, and irritability. 2. Effective from to March 20, 2017, the Veteran’s PTSD symptoms have been productive of no more than moderate to severe social and occupational impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood; but not total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent, effective prior to March 20, 2017, and in excess of 70 percent, effective from March 20, 2017, for service-connected PTSD, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1959 to August 1963, and from October 1963 to November 1980. The record reflects that in an August 2018 Brief, the Veteran’s representative discussed the issue of entitlement to service connection for sinusitis. The Veterans Appeals Control and Locator System (VACOLS) shows that this issue was withdrawn by the Veteran, but there is no documentation of any such withdrawal. In a letter dated in August 2018, the Veteran and his representative were advised that it was unclear whether he wished to withdraw his appeal, that withdrawals must be in writing, and that if no response was received within 30 days, VA would assume he wanted to continue with the issue. Review of the record shows no response was received from either the Veteran or his representative. Significantly, however, while this issue was denied in a July 2016 RO rating decision, the Veteran did not perfect an appeal of the claim, and it was never certified to the Board. Thus, the issue is not properly before the Board. Increased Rating Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s PTSD is currently rated as 30 percent disabling prior to March 20, 2017, and 70 percent disabling from that date under Diagnostic Code (DC) 9411. This Diagnostic Code provides for a 30 percent rating for 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). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is warranted for PTSD where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereo-typed speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for PTSD 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; 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. Id. 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. In order for a rating in excess of 30 percent to be granted for the Veteran’s PTSD, the competent evidence of record would need to show or approximate occupational and social impairment with reduced reliability and productivity due to symptoms such as those listed in the criteria for a 50 percent rating under DC 9411, and/or other symptoms attributed to his service-connected PTSD. 38 C.F.R. § 4.130, DC 9411; Mauerhan v. Principi, supra. In that regard, the medical evidence relating to the Veteran’s PTSD includes VA treatment records which showed that in May 2015, he reported he had been married to his wife for 16 years, rarely saw children and grandchildren, although a grandchild was staying with them for the summer, and he kept in contact with his sibling. In June 2015, he reported a recent increase in nightmares and that his PTSD symptoms primarily caused him problems in marriage. His wife stated that 4 times a week, the Veteran had nightmares, flailed and talked in his sleep, and that it was worse when he watched war movies before bed. Mental status examination was unremarkable. In June 2015, he reported it was easy for him to speak about his Vietnam experiences because he was told it would make him less likely to struggle with avoidance, but he had problems at work because not everyone believed he served in Vietnam. Mental status examination was unremarkable, but he was found to be distractible, and had short term memory impairment and mildly tangential thoughts. On a VA Disability Benefits Questionnaire (DBQ) examination in June 2015, the examiner summarized the Veteran’s PTSD resulted 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 normal routine behavior, self-care and conversation. The Veteran reported he worked as a rural carrier for the post office for eight years and worked about sixty hours a week. He had never been fired and said he has “perfect relations” in the work setting. He reported he got up at 5:00 am, made a sandwich, fed the animals, and then went to work. His hobbies included hunting, fishing and eating with friends. He was able to drive, and do his own shopping and laundry. He slept about 2 to 3 hours a night and had restless agitated sleep. He was independent in dressing, grooming, preparing meals, and feeding himself. Symptoms associated with PTSD included anxiety, suspiciousness, chronic sleep impairment, and disturbances of mood and motivation. Examination revealed he was adequately groomed and fully oriented. He reported that most of the time, he felt he was “on pins” and did not like it when people sneak up behind him. His affect was somewhat irritable but appropriate to content. Thought processes were logical and coherent, and he denied obsessive thoughts and compulsive behavior. He reported 3 to 4 nightmares every night and woke up feeling very agitated. He had never felt suicidal. His insight appeared to be adequate. It was noted that his impulse control may fluctuate at times but was generally good. His insight and judgment seemed good. His attitude was initially irritable, but he was cooperative. His motor behavior and speech were normal. He reported that 2 to 4 times a week he had upsetting thoughts and images of Vietnam, and difficulty concentrating, and once a week or less he had physical reactions and tried not to think about his experiences. He avoided reminders, had a loss of interest in activities, and was irritable and easily startled. His wife looked at his questionnaire and believed he underreported the frequency of nightmares, being emotionally upset and avoidant, difficulty concentrating and being easily startled. VA treatment records showed that in July 2015, the Veteran reported sleep problems and nightmares, but denied a depressed mood, hopelessness, anhedonia, or suicidal ideation. His wife was present at the appointment for support. He had good relationships with his wife and family. On examination he had a blunted affect with restricted range. In September 2015, he reported having nightmares and kicking in his sleep. His mood was okay and he felt a little better since his last visit. His wife confirmed he was less restless in his sleep, and he reported decreased frequency of nightmares. In November 2015, he continued with insomnia, nightmares, and acting out in his sleep. He denied suicidal and homicidal ideation. In January 2016, his mood was “alright”, but he reported significant stress associated with traffic and a recent trip and generalized worry about many things. He had a stressful holiday season as a postman, but was looking forward to a cruise. In May 2016, he denied any bothersome symptoms of depression or anxiety. His main complaint was sleep problems and he reported disturbing nightmares regularly and acting out dream behavior. He denied suicidal or homicidal ideation, and mental status examination was unremarkable. The VA physician noted that PTSD and obstructive sleep apnea (OSA) were the most likely cause for his sleep problems. In January 2017, he denied depressive symptoms, suicidal ideation, and hallucinations. In February 2017, mental status examination revealed he had a dysthymic mood and irritability, but he denied suicidal and homicidal ideation. Also, in February 2017, the Veteran reported he was “freaking out again,” and reported poor sleep and difficulty using his CPAP machine. He had been dreaming about what happened in Vietnam. He had irritability and interpersonal issues with his wife. No suicidal or homicidal ideation was reported. It was noted he had a constricted affect and dysthymic mood. After reviewing the pertinent evidence of record prior to March 20, 2017, the Board finds that the manifestations of the Veteran’s PTSD do not meet or approximate the criteria for a rating in excess of 30 percent, under DC 9411. While he experienced anxiety, suspiciousness, chronic sleep impairment with nightmares and acting out during sleep, disturbances of mood and motivation, difficulties with concentration, irritability, upsetting thoughts and images of Vietnam, loss of interest in activities, short term memory impairment, a blunted affect, and being easily startled, he has shown minimal to no occupational and/or social impairment due to his PTSD. Further, on mental status examinations, he was found to be oriented, and no problems with his grooming, thoughts, speech, or insight and judgment, were noted, nor were panic attacks noted. Such evidence illustrates that, prior to March 20, 2017, the Veteran’s service-connected PTSD was manifested by symptoms no worse than those reflected in the criteria for a 30 percent evaluation. Further, the Veteran contends that he should be entitled to a rating in excess of 70 percent for PTSD, effective from March 20, 2017. Of record is a VA Form 21-0960P-3 (Review PTSD DBQ), dated March 20, 2017, and completed by a private psychologist, B.T., Ph.D. Dr. T. opined that the Veteran’s PTSD was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The symptoms related to his PTSD included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control such as unprovoked irritability with periods of violence “if startled”, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. On a VA examination in February 2018, the examiner summarized the Veteran’s level of impairment due to PTSD symptoms 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 reported he and his wife recently went on a 2 week cruise. He reported he quit the Post Office in August 2017, when he turned 75. He had retired in 2008 from the Post Office after 20 years, but went back in 2009 and worked as a temporary until 2014 when he became a regular carrier until 2017. He was injured in May 2017, and was currently on worker’s compensation. Symptoms related to his PTSD included anxiety, suspiciousness, panic attacks that occur weekly or less often, and chronic sleep impairment. On examination, he was alert and oriented, and fluent of speech. He was assessed as no a current imminent or increased risk. The examiner indicated there was a worsening of the Veteran’s symptoms, however, there was no change to the diagnosis. With regard to occupational impairment, it was noted that the Veteran had previously been able to function in a work environment, that he was able to reason and come to conclusions about what he wants to do, that he had no functional limitations currently that would prevent him from being able to work as he previously had, that he had never received any disciplinary write-ups while he was out of work, and that he would not be able to work in a high security environment because he “freaks out” when he sees other people with guns. After review of the record, however, the Board concludes that the next higher rating of 100 percent is not warranted, as the Veteran does not have total social and occupational impairment due to PTSD symptoms. In that regard, the record reflects that the symptoms associated with his PTSD have included findings, at various times, of depressed mood, anxiety, irritability, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control such as unprovoked irritability with periods of violence “if startled”, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. There has been, however, no showing of 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; disorientation to time or place; and memory loss for names of close relatives, or for the Veteran’s own occupation or name. Moreover, the record shows that he maintained a relationship with his wife, was alert and oriented, and had fluent of speech. With regard to occupational functioning, it was noted that he worked as a mail carrier until August 2017. In 2018, the VA examiner opined that Veteran had no functional limitations currently that would prevent him from being able to work as he previously had. The Board acknowledges that in the August 2018 Appellant’s Brief, the Veteran’s representative indicated that the Veteran asserted his symptoms had “severely worsened.” However, there was no indication of a time frame for this, nor was there an indication that this was since the most recent VA examination in 2018. Also, there was no description provided of how the Veteran’s PTSD symptoms had severely worsened, nor is this supported in the record. Considering the evidence of record dated from March 20, 2017, the Board finds the Veteran’s level of symptomatology due to his service-connected PTSD is consistent with a finding of, at most, moderate to severe occupational and social impairment with deficiencies in most areas since March 20, 2017. Since that time, the criteria for a 100 percent schedular rating have not been met or approximated. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Casula, Counsel