Citation Nr: 18148764 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 15-36 142 DATE: November 9, 2018 ORDER Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s PTSD was manifested by symptoms productive of functional impairment comparable to 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). CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for PTSD are not met. 38 U.S.C. § 1155, 5103A, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1999 to November 2003 and January 2006 to April 2006. Although evidence was added to the Veteran’s claims file since the Regional Office’s last adjudication in August 2015, the Veteran submitted a written waiver of initial Regional Office consideration of such evidence. 38 C.F.R. § 20.1304. Accordingly, the Board will proceed with adjudication. 1. Entitlement to an initial rating in excess of 30 percent for PTSD is denied. Disability ratings are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 506 (2007). In the case of an initial rating, the period for consideration is that beginning with the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Here, the Board has considered whether a staged rating is applicable. The Board finds that a staged rating is not warranted in this case, as the Veteran’s symptoms have remained relatively stable throughout the appeal period. PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula For Mental Disorders, to include PTSD, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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; or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where 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; intermittently illogical, obscure, or irrelevant speech; 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); and inability to establish and maintain effective relationships. A 100 percent evaluation is assignable where 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability rating is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability arising 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. 38 C.F.R. § 4.126(b). In evaluating the level of disability, it is also necessary to evaluate such from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Analysis Here, the Veteran’s PTSD has been rated 30 percent disabling from August 24, 2014, the effective date of service connection. In his August 2014 claim, the Veteran reported nightmares, trouble sleeping, a short temper, safety obsessions, and that he avoids large crowds and has withdrawn from interactions with others. During the December 2014 VA contract examination, the Veteran reported anxiety, depression, recurrent recollections of events in service, insomnia, general withdrawal from others, and an uneasy feeling. The VA contract examiner noted that the Veteran is married and works full-time. Upon examination, the VA contract examiner noted that the Veteran was slow in interactions. The Veteran was not delusional and denied hallucinations as well as suicidal or homicidal ideation. He showed appropriate knowledge, had good insight, and had good judgment. The VA contract examiner noted the Veteran did not have any obsessive-compulsive features. The VA contract examiner noted that the Veteran did not appear to pose any threat of danger or injury to himself or others. The VA contract examiner noted symptoms of anxiety and chronic sleep impairment associated with the Veteran’s PTSD, and noted that the Veteran’s level of impairment was moderate. The VA contract examiner opined that 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. In a May 2018 statement in support of a separate claim, the Veteran’s spouse reported that the Veteran is always tired and irritable and does not have energy to enjoy family activities. She reported that he barely has an interest in things the family is doing, and that he does not want to be bothered. Throughout the appeal period, the Veteran’s VA treatment records consistently noted that the Veteran had good eye contact and a cooperative attitude. The Veteran’s mood was noted to be very positive, good, anxious at times, depressed or anxious at times, or slightly depressed. The Veteran’s affect was generally noted to be appropriate. VA treatment records also consistently noted normal speech or soft and fluent speech, with one notation that the speech was fluent and monotone. The Veteran’s thought processes were normal. The Veteran denied suicidal or homicidal thoughts. The Veteran denied hallucinations. No delusions were noted. No deficits in memory or attention and concentration were noted. Judgment and insight were appropriate. Some sleep problems were noted, but the Veteran reported that he sleeps better with his medication. The Veteran reported fear of crowds. VA treatment records show that the Veteran has maintained a full-time job with the same company that he has worked for since he left service, and has been married to his wife for approximately thirteen years. He reported visits from grandchildren and catching up with a friend from service. He reported that he attends church regularly. He spends his free time woodworking, building bird houses, fishing, and gardening. After considering the lay and medical evidence of record, including the VA treatment records, VA contract examination, and statements from the Veteran and his wife, the Board concludes that a rating in excess of 30 percent for the Veteran’s PTSD is not warranted at any time during the appeal period. Throughout the appeal period, the severity and type of symptomatology described by the evidence of record more closely approximates the impairment contemplated by the currently assigned 30 percent rating criteria. The severity of the Veteran’s PTSD more closely approximates 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 evidence of record shows some anxiety, depression, sleep problems, fear of crowds, and social withdrawal. The evidence does not show a combination of symptoms more nearly approximating occupational and social impairment with reduced reliability and productivity, which would warrant a 50 percent rating. In VA treatment records, the Veteran’s affect was generally noted to be pleasant, bright, mood congruent, and responsive to wit. An October 2014 VA treatment record notes that the Veteran had unrestricted range of affect. A December 2014 VA treatment record noted that the Veteran’s affect was restricted at the beginning of the appointment, but was bright and expressive by the end of the appointment. VA treatment records also generally note that the Veteran’s speech and thought processes were normal. VA treatment records show the Veteran had a fear of crowds, but also that the Veteran reported improvement. A March 2015 VA treatment record noted that the Veteran did not believe he needed further assistance with the problem. The record does not show panic attacks. The record does not show problems with memory or difficulty in understanding complex commands. The Veteran’s attention and concentration were noted to be intact in VA treatment records. The Veteran’s judgment and abstract thinking were noted to be appropriate. VA treatment records show intermittent anxiety and depression, with periods of good mood. The Veteran’s spouse reported that the Veteran lacks interest and energy to engage in family activities, in a statement made in relation to the Veteran’s claim for sleep apnea and snoring. However, when asked during mental health treatment whether he had little interest or pleasure in doing things, the Veteran generally replied “not at all.” The Veteran and his wife’s statements also indicate some social withdrawal. However, the December 2014 VA contract examiner did not note that the Veteran had difficulty in establishing and maintaining effective work and social relationships. The Veteran reported attending church with his wife, going to the gym with his wife, spending time with grandchildren, and catching up with a friend from service. He reported that he spends his free time woodworking, gardening, and fishing. The December 2014 VA contract examiner noted moderate impairment from the Veteran’s PTSD. Overall, the Veteran’s disability picture does not more nearly approximate occupational and social impairment with reduced reliability and productivity. Accordingly, a 50 percent rating is not warranted. The Veteran’s impairment during this time also does not result in a level of impairment more nearly approximating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, warranting a 70 percent rating. Although the Veteran reported a short temper and his spouse reported that he was irritable, the record does not show instances of unprovoked irritability with periods of violence. The December 2014 VA contract examiner noted that the Veteran did not appear to pose any threat of danger or injury to himself or others. The Veteran’s judgment and insight were intact. The Veteran’s thought processes were normal. The record shows no hallucinations or delusions. The Veteran’s speech was generally normal, with no illogical, obscure, or irrelevant speech noted. The Veteran denied suicidal or homicidal ideation. The Veteran reported safety obsessions in his August 2014 claim, and the VA treatment records show treatment for a fear of crowds. The December 2014 VA contract examiner noted that the Veteran did not have obsessional rituals which interfere with routine activities, and explained that the Veteran did not have any obsessive-compulsive features. The record does not show spatial disorientation, or neglect of personal appearance and hygiene. The Veteran’s appearance during treatment visits was appropriate. The record does not show near-continuous panic or depression affecting the ability to function independently, but instead shows the Veteran’s depression and anxiety was intermittent. The Veteran enjoyed his hobbies. The Veteran’s PTSD symptomatology also does not result in total occupational and social impairment, warranting a 100 percent rating. The Veteran maintains a full-time job, has been married for 13 years, remains active, and enjoys his hobbies. The record does not show evidence like disorientation to time or place, or suicidal or homicidal ideation. The record does not show memory loss, let alone the kind of memory loss contemplated by a total rating, such as memory loss so severe that the Veteran forgets his own name. The Veteran was generally able to perform activities of daily living. In sum, the Board finds that the preponderance of the evidence weighs against the assignment of a rating in excess of 30 percent for the Veteran’s PTSD at any time during the appeal period. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel