Citation Nr: 18147989 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-25 062 DATE: November 6, 2018 ORDER Entitlement to increases in the (30 percent prior to August 5, 2016, and 70 percent from that date) staged ratings assigned for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s PTSD is not shown to have had symptoms productive of occupational and social impairment with reduced reliability and productivity at any time prior to August 5, 2016; at no time from that date is it shown to have had manifestations resulting total occupational and social impairment. CONCLUSION OF LAW Ratings for PTSD in excess of 30 percent prior to August 5, 2016, and in excess of 70 percent from that date are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.125, 4.129, 4.130, Diagnostic Code (Code) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from June 1988 to September 2013. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision. Entitlement to increases in the (30 percent prior to August 5, 2016, and 70 percent from that date) staged ratings assigned for posttraumatic stress disorder (PTSD) is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When the appeal is from the initial rating assigned with an award of service connection, the entire period from the initial assignment of the disability rating to the present is to be considered, and “staged” ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. at 125-26 (1999). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). PTSD is rated under Code 9411 and the General Rating Formula for Mental Disorders, which provides for a 100 percent rating 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. 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, 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 50 percent rating is warranted if there is 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. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the United States Court of Appeals for Veterans Claims noted that the list of symptoms in the Board’s general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather is to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. A September 2013 outpatient mental health treatment record notes that the Veteran was seen with complaints of anxiety. He described an avoidance of conflict, crowded places, and loud noises. He stated that traffic jams made him anxious. An October 2013 Mental Health appointment noted diagnoses of PTSD and panic disorder without agoraphobia. Medications included Trazadone. The provider noted that he did not appear to be in acute distress, did not appear to have a thought disorder, did not have auditory or visual hallucinations. The provider noted that he denied past and current suicidal and homicidal ideation. He reported that his mood was okay. The provider noted that his long and short-term memory appeared to be intact, insight and impulse control was deemed good, and judgment was deemed sound. A January 2014 outpatient mental health record notes diagnoses of PTSD, and panic disorder without agoraphobia. The Veteran described re-experiencing trauma. He appeared oriented without abnormalities in attention or concentration. No auditory or visual hallucinations. He denied past and current suicidal and homicidal ideation in plan, intent, and preparatory behavior. He reported his mood to be nervous. Long and short-term memory appeared to be intact, insight and impulse control was deemed good, judgment was deemed sound. On May 2014 Mental Disorders examination, the diagnosis was unspecified anxiety disorder. Occupational and social impairment was noted as mild with transient symptoms. It was noted that the Veteran received several sessions of mental health treatment for anxiety beginning in September 2013. The symptoms were noted as anxiety and chronic sleep impairment. On May 2014 General Medical examination psychiatric symptoms included nightmares, trying not to think about it, being constantly on guard, feeling numb. A depression screening showed little interest in doing things, hopelessness, without thoughts of suicide. A May 2016 behavioral health record notes PTSD anger, road rage, excessive eating, and a BAI score of 60. The Veteran noted passive thoughts of suicide. On August 2016 VA examination the diagnoses were PTSD, panic disorder, persistent depressive disorder. Occupational and social impairment was noted as social impairment with reduced reliability and productivity. It was noted that the Veteran was married for 14 years with conflict, and employed as a network and systems administrator. He reported irritable behavior, hypervigilance, problems with concentration, sleep disturbances, depressed mood, anxiety, suspiciousness, panic attacks more than once a week, mild memory loss, speech intermittently illogical, difficulty in understanding complex commands, impaired judgment, difficulty in establishing and maintaining effective relationships, difficulty adapting to stressful circumstances, suicidal ideation, neglect of personal appearance and hygiene. The examiner observed that he arrived on time to the appointment appearing neatly and cleanly dressed with appropriate grooming and hygiene. He described suicidal ideation with no specific plan and no intent to act. Insight and judgment were fair to poor. An October 2016 cognitive processing therapy note states that the Veteran did not have suicidal or homicidal ideation. It was noted that his mood was somewhat anxious but he was engaged in group discussion during the session. A May 2017 individual therapy record notes that the Veteran appeared alert, oriented, with good eye contact and no obvious indication of formal thought disorder, no delusions or visual/auditory hallucinations. Insight and judgment were noted as intact. The provider noted that the Veteran was low risk for suicidal or homicidal ideation. On a July 2017 individual therapy note the diagnosis was PTSD in partial remission, with adjustment related concerns prominent. A September 2017 Group therapy record notes that the Veteran was alert and oriented with clear, coherent speech and thought process that was logical, linear, and goal directed. The record shows that prior to August 5, 2016 the Veteran had participated in outpatient mental health therapy and received medication for his PTSD. While his symptoms included anxiety, chronic sleep impairment, nightmares, trying not to think about it, being constantly on guard, feeling numb, they were not shown to result in occupational and social impairment with reduced reliability and productivity due to such symptoms. He was married throughout (tended to activities of daily living on his own, participated in his own mental health treatment, maintained finances, and worked full time). Such level of functioning does not reflect that his PTSD caused occupational and social impairment with reduced reliability and productivity and a rating in excess of 30 percent was not warranted prior to August 5, 2016. As a 70 percent rating was assigned effective August 5, 2016 (the date of an examination on behalf of VA that found worsening) the analysis turns to whether a rating in excess of 70 percent is warranted from that date. At no time from August 5, 2016, is the disability picture of the Veteran’s PTSD shown to have been one of total occupational and social impairment. He has maintained marital relations, and relations, participates in medical management of his disabilities, tends to activities of daily living independently, has not been found incapable of tending to his own finances; and continues to work. He has not displayed symptoms in (or of equivalency to those in) the criteria for a 100 percent schedular rating for PTSD. Accordingly, a rating in excess of 70 percent for PTSD is not warranted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel