Citation Nr: 18150175 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 13-18 440A DATE: November 14, 2018 ORDER Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to January 19, 2017 is denied. FINDING OF FACT The Veteran’s service-connected PTSD is productive of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of the inability to perform occupational tasks prior to January 19, 2017. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for PTSD, prior to January 19, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to February 1971. The matter was remanded by the Board of Veterans’ Appeals (Board) in July 2015. The Board denied the matter on appeal in December 2017. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2018 Joint Motion for Partial Remand (JMR), the Court vacated the December 2017 decision related to the current appeal, and remanded the issue back to the Board. The JMR did not disturb the portion of the decision which denied entitlement to a rating in excess of 70 percent for PTSD beginning January 19, 2017. The Board notes that the issue, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was remanded in the December 2017 decision. The issue is still before the Agency of Original Jurisdiction and has not been returned to the Board at this time. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Board acknowledges that in September 2018, the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form regarding the issue on appeal. The issue was already activated by the Board, and therefore no longer eligible for the RAMP program. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to January 19, 2017 Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The General Rating Formula for Mental Disorders provides 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 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. The criteria for a 50 percent rating are 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; and difficulty in establishing and maintaining effective work and social relationships. Id. The criteria for a 70 percent rating are 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); and inability to establish and maintain effective relationships. Id. The criteria for a 100 percent rating are 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; and memory loss for names of close relatives, own occupation or own name. Id. Furthermore, as the United States Court of Appeals for the Federal Circuit (Federal Circuit) explained, 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.” See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 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. See 38 C.F.R. § 4.126(a). Furthermore, 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 based on social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. The Veteran submitted a claim for service connection for PTSD in July 2011. Service connection was granted by a September 2011 rating decision with an evaluation of 30 percent effective July 13, 2011. The Veteran was afforded a VA examination in August 2011. The Veteran reported nightmares, insomnia, and social isolation. The Veteran denied current suicidal ideations, but acknowledged he did experience such ideations in the “distant past.” On examination, the examiner found the Veteran suffered from a depressed mood, but no other symptoms were attributable to PTSD. The examiner found the Veteran’s symptoms manifested 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, or; symptoms controlled by medication. In September 2011 a psychiatrist and social worker from Vet Center submitted a statement that detailed the Veteran’s symptoms they had observed while treating him. He did not like crowds; and he reported worsening memory, increased temper, and sleep impairment. The examiners noted the Veteran experienced passing suicidal ideations in the past tense, and also noted that the Veteran stutters when he speaks, which the Veteran attributed to Vietnam. In December 2011 VA treatment notes, the Veteran reported a strong preference to avoid all social contact, noting he turned down a new position at work to avoid working with people. A thorough review of the record consistently shows the Veteran was dressed appropriately; had normal speech; had logical and linear thought processes; denied suicidal ideations, homicidal ideations, auditory hallucinations, visual hallucinations, and delusions; and was oriented in all spheres during mental health assessments. Medical notes from the Durham VA Medical Center indicate the Veteran sought emergency treatment in June 2015 for an unrelated issue. As part of his treatment the Veteran underwent a psychiatric risk assessment, but no high-risk behavior was identified. In June 2016, the psychiatrist and social worker from Vet Center submitted an additional statement with an overview of their treatment of the Veteran since 2011. The Veteran reported severe isolation, mentioning he has not talked to family for 30 years. He reported he was getting “much more forgetful,” his temper had increased, and sleep impairment. The examiners also noted the Veteran had experienced suicidal ideations in the past tense. Based on the evidence, an initial rating in excess of 30 percent for the appeal period prior to January 19, 2017, is not warranted. For the initial rating period from July 13, 2011 to January 19, 2017, the Veteran’s PTSD resulted in symptoms that include, but are not limited to depression, nightmares, bad temper, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and the inability to establish and maintain effective relationships. The Board notes that the Veteran reported experiencing past suicidal ideations in 2011 and 2016, specifically noting suicidal ideations in the “distant past” during the August 2011 VA examination. Contemporaneous evidence in the record during the appeal period shows that the Veteran consistently denied suicidal ideations throughout his medical records. The Board is cognizant that an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates “staged ratings” where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). While the Board has considered the entire historical record in ascertaining the initial rating warranted in this case, the fact of earlier suicidal ideations must be considered in the context of the total dearth of reports of suicidal ideations (and denials of such) during the appellate period, as well as the dearth of any other symptoms for a higher rating. Put simply, these reports of suicidal ideations in the past represent an insufficient predicate for an initial rating in excess of 30 percent, in and of themselves. The Veteran is competent to report his experiences and symptoms, and his statements have been considered by the VA primary care clinicians and VA examiners. These symptoms are similar to many of those contemplated by the currently assigned 30 percent rating. In particular, the General Rating Formula lists, inter alia, depressed mood, suspiciousness, and chronic sleep impairment among the types of symptoms associated with a 30 percent rating. 38 C.F.R. § 4.130. VA must consider all of the Veteran’s symptoms and resulting functional impairment as shown by the evidence of record in assigning the appropriate rating, and will not rely solely on the examiner’s assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126. An evaluation of the Veteran’s overall disability picture supports a rating of 30 percent for this period on appeal, especially considering the medical professionals’ opinions. Although the 50 percent rating criteria contemplates difficulty in establishing and maintaining effective work and social relationships, and the 70 percent rating criteria contemplates the inability to establish and maintain effective relationships and disturbances of motivation and mood, the totality of the Veteran’s symptomatology most closely approximates and is contemplated by a 30 percent rating. Based on both lay and medical evidence, the record is negative for additional symptoms listed under the criteria for a 50 percent, 70 percent, or 100 percent rating. In December 2012 the Veteran asserted that he had some good days and some bad days, but overall could function well in day-to-day routines. The psychiatry note from December 2012 indicated the Veteran had no problems or concerns that he wanted to address at the supportive therapy session. A June 2013 psychiatry note indicated the Veteran was doing well in daily routines, and in February 2014 he reported no concerns about PTSD or his mood. The evidence is therefore not supportive of an initial rating in excess of 30 percent prior to January 19, 2017 based on the cumulative nature, frequency, and severity of the Veteran’s PTSD symptoms during that period. The Board finds that the impact of the Veteran’s symptoms, when considered with the record, have not been so severe as to warrant a rating in excess of 30 percent for the period on appeal, and the appeal must be denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel