Citation Nr: 18148817 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 13-00 087 DATE: November 9, 2018 ORDER Entitlement to an initial rating in excess of 50 percent prior to June 23, 2015 for service-connected post-traumatic stress disorder (PTSD) is denied. FINDING OF FACT Prior to June 23, 2015, the Veteran’s PTSD was manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as panic attacks more than once per week, difficulty understanding complex commands, memory impairment, disturbances of motivation and mood, and difficulty establishing and maintaining occupational and social relationships. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent prior to June 23, 2015 for service-connected PTSD have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, CT. The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge on September 2013. A transcript of the hearing is in the Veteran’s file. In a March 2012 rating decision, the Veteran was awarded service connection for PTSD, with a 30 percent disability rating effective April 21, 2011. The Board remanded the appeal in January 2015 for a new VA examination. In an October 2015 rating decision, the RO increased the disability rating to 70 percent, effective June 23, 2015. The Board remanded a second time on August 2017 to consider all the evidence on record. In a July 2018 rating decision, he was awarded an increased 50 percent rating prior to June 23, 2015 and 100 percent rating thereafter, representing a total grant of benefits for this claim for the period beginning on June 23, 2015. The Veteran continues his appeal for a total rating for the period April 21, 2011 to June 23, 2015. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their 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 for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007). Entitlement to an initial rating in excess of 50 percent prior to June 23, 2015 for service-connected PTSD Under the General Rating Formula For Mental Disorders, a 50 percent rating is warranted when 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 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. A 70 percent rating 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; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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 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. The use of the term “such as” in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Id. The Veteran sought counseling for his PTSD symptoms at a Veteran’s Center beginning January 2011. At that time, the Veteran reported symptoms consistent with PTSD. He also reported he had been married for 30 years and had a healthy relationship with his wife and a stable career history, with some current frustration with his workplace. He also reported that had a healthy readjustment upon return from military service due to readjustment programs offered on base. He was able to attend university on a grant funded program. In early May 2011, medical treatment records at the West Haven VAMC show the Veteran was screened positive for PTSD. The Veteran reported having nightmares. He went out of his way to avoid situations that reminded him of his stressor or tried hard not to think about it. He felt constantly on guard and easily startled. He did not, however, feel numb or detached from others, activities or surroundings. The Veteran was also screened for depression but was not found to have any symptoms of depression. The Veteran was provided a suicidal assessment but the physician found no current suicidal ideation and considered the Veteran to be at low risk for injury to himself and others. He was provided a followup plan for treatment with his primary care at the Vet Center. Later in May 2011, the Veteran was afforded a VA psychological examination. He stated that he had significant re-experiencing of the trauma of events during military service with flashbacks, which occur 1-2 times per month and nightmares that occur 2-3 times per week. The Veteran displayed increased heart rate and perspiration when he hears loud sounds, gunfire, or certain smells. He reported significant symptoms of avoidance such as avoiding thinking about war and violence. He also avoided people, places, and or activities that remind him of trauma such as crowds and public places. The Veteran also had significant social isolation and withdrawal, avoiding public places shopping venues and family and social gatherings. The examiner found the Veteran displayed restricted range of affect and significant anhedonia stating that there were many leisure time activities which he enjoyed before going in to the service, which had no pleasure for him afterward. The Veteran also had significant symptoms of increased arousal with sleep disturbance, allowing him to sleep only 3-4 ours per night, having difficulty falling and staying asleep. The Veteran was easily angered, had frequent arguments and angry outbursts with his family, coworkers, and people in public places. He has diminished concentration through difficulty following verbal instructions, reading, and general difficulties maintaining focus. The Veteran reported hypervigilance by getting up frequently in the night to check the locks on doors, windows. The Veteran claims that these symptoms began when he returned from combat. The Veteran reports that his PTSD symptoms have resulted in coworkers and managers being afraid of him and putting him in positions where he has the least contact with other workers. He also feels his marriage suffered from his rages, social isolation and nightmares, which causes his wife great distress. The Veteran reported he has no friends, social life or leisure activities worth mentioning. The examiner noted the Veteran was adequately groomed, casually dressed appearing to be his stated age and had a neatly trimmed mustache. He was alert and oriented in all spheres. His self-reported mood was “perplexed.” Affect and eye contact were appropriate, and his speech, rate, tone, and volume were within normal limits. The Veteran’s speech content was logical and goal directed. Overall, the Veteran was appropriate and cooperative during the evaluation. There was no evidence of delusions, hallucinations, inappropriate behavior, panic attacks, memory impairment, or suicidal and homicidal ideation. He was not judged to be a danger to himself or others. He was able to manage activities of daily living and his financial affairs. The examiner concluded that the PTSD resulted in moderate impact in day-to-day functioning. The Veteran continued to seek counseling at the Veterans Center and in February 2012, the Veteran was still involved in a youth hockey league in his hometown. He reported that keeping active helped keep his PTSD symptoms at bay. In May 2012, he reported less stress at work which resulted in better sleep and reduced nightmares. In July 2012, the counselor found the Veteran was functioning at a healthy level and dealt with life stressors well. In September 2012, the Veteran reported being excited about an upcoming vacation with his wife. The counselor found that he was dealing with life stresses well but he was still affected daily by his time in Vietnam. Towards the end of 2012, the counselor noted the Veteran appeared stressed and frustrated. The Veteran noted the holiday season caused him extra stress at work. He continued to have memories of Vietnam if he let his mind wander for too long. In early 2013, the Veteran reported symptoms of anxiety at work and having trouble sleeping. The counselor found he was not ready to deal with possible trauma or self-reported anxiety. For the period prior to June 23, 2015, the severity, frequency, and duration of the Veteran’s symptoms most closely approximates occupational and social impairment with reduced reliability and productivity. The Board notes the Veteran has manifested a few of the symptoms specifically contemplated by the 70 percent rating, including obsessional rituals and difficulty in maintaining relationships but, due to the lack of consistent severity, frequency, and duration of those symptoms, the Veteran’s service-connected symptoms have not been shown to be productive of deficiencies in most areas or the degree of occupational and social impairment commensurate with a 70 percent disability rating under DC 9411. See Vasquez-Claudio v. Shinseki, 713 F.3d 112. The Veteran was still able to maintain his career as a mail carrier, albeit with some adjustments for his incompatibility with co-workers. The Board also finds particularly probative that, while the evidence shows the Veteran experienced an impairment in social functioning, he has remained married for over 30 years and reported a healthy relationship during the relevant time period. The Board notes that the evidence is inconsistent with respect to the Veteran’s social interactions, as he reports isolating himself from social and family functions, yet he was involved in a youth hockey league during the relevant period. Thus, while he may have had difficulty maintaining and establishing effective interpersonal relationships, the evidence shows it does not rise to the level of an inability to do so, as contemplated by the 70 percent rating. The Veteran’s speech was normal, there was no evidence of near-continuous panic or depression, and while there were angry outbursts, there were no reported periods of violence, spatial disorientation, or neglect of appearance or hygiene. He had no reported hospitalizations for mental health treatment. The Veteran’s thought process and content has been within normal limits, without any evidence or complaints of homicidal ideation, or persistent hallucinations or delusions. The Board also acknowledges the contentions by the Veteran’s representative that the May 2011 VA examination was inadequate for rating purpose. However, the bases for the inadequacy is not explained, and yet the Veteran’s representative argues the same examination demonstrates a 100 percent evaluation. The Veteran’s history was taken and a complete examination was conducted that included specific psychiatric testing. The conclusions reached were consistent with the concurrent counseling and VA medical treatment records on file. For these reasons, the Board finds that the Veteran was afforded an adequate examination on the issue of initial rating for service-connected PTSD. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran also contends that since the VA examiner found no “current” suicidal ideation during his 2011 examination, there must have been suicidal ideation at times other than the actual examination. There is no evidence, however, of any suicidal ideation during the relevant period. The Veteran did not mention any suicidal thoughts during his counseling sessions and affirmatively denied it during his VA medical treatment. The Veteran submitted a statement claiming he would sometimes “welcome death,” however, this does not rise to the level of suicide ideation. See Counseling Records, see West Haven VAMC Treatment Records from February 2011, see also Correspondence dated September 2013. The evidence of record throughout this period has noted the reports of nightmares occurring 2-3 times weekly and flashbacks occurring 1-2 time monthly. However, there is no indication that they rise to the level of panic attacks that occur on a near-continuous basis, as to warrant a higher 70 percent rating. In fact, the counseling records show reduced nightmares and better sleep in 2012. See Counseling Records. The Board notes that he Veteran, his wife and friend submitted lay statements documenting the Veteran’s symptoms, however, there is no evidence in the statements that would indicate a higher rating is warranted. The statements are also less probative than the findings of the VA examiners who took into consideration the Veteran’s subjective complaints, his social and occupational history, and the results of the objective mental status evaluation in presenting the overall severity of his PTSD. This determination is multi-factorial, not just predicated on his lay statements and other testimony, but all of the relevant medical and other evidence. The Board must assess the probative value and weight of the evidence in light of the entire record. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Board therefore places more weight on the VA examinations and other psychiatric medical evidence than the Veteran’s lay statements, regarding his level of impairment. As a result, the Board finds that the Veteran’s symptoms have not resulted in deficiencies in most areas or the degree of occupational and social impairment contemplated by the 70 percent rating. A rating of 100 percent is also not warranted, as the preponderance of the evidence does not reflect that the Veteran has manifested a gross impairment of thought processes or communication with persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, or other symptoms indicative of a total impairment in social and occupational functioning at any point during the appeal period. In sum, the Board finds that the Veteran’s PTSD symptomatology has not resulted in occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. Thus, the Board concludes that during the period prior to June 23, 2015, the criteria were not met for a rating in excess of 50 percent for the Veteran’s PTSD. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Jaigirdar, Associate Counsel