Citation Nr: 18151065 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 08-19 094 DATE: November 16, 2018 ORDER Entitlement to a rating in excess of 50 percent for PTSD from January 4, 2012 is denied. FINDING OF FACT From January 4, 2012, the occupational and social impairment from the Veteran’s PTSD more nearly approximated impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for PTSD, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from September 1966 to July 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2017 decision, the Board granted an increase in the initial rating for the Veteran’s PTSD from 10 to 30 percent from August 1, 2007, and denied the claim for a rating in excess of 50 percent from January 4, 2012. The Veteran appealed that portion of the decision to the United States Court of Appeals for Veterans Claims (Court) which denied the claim for a rating in excess of 50 percent from January 4, 2012. By Order dated May 2, 2018, the Court vacated the Board’s denial of the claim and remanded it to the Board for action consistent with the Joint Motion for Partial Remand (JMR). The case has now been returned to the Board for further appellate action. Entitlement to a rating in excess of 50 percent for PTSD from January 4, 2012 The Veteran contends that he is entitled to a rating higher than currently assigned for his PTSD. In July 2018, the Veteran and his attorney were advised that they had 90 days to submit additional evidence or argument on the appeal following remand by the Court. In August 2018, the Veteran, through his attorney, indicated he had no additional evidence or argument to submit and waived the remaining period of time to submit such evidence or argument. No further argument was provided by the Veteran’s attorney at that time. The Veteran’s service-connected PTSD has been assigned a 50 percent rating beginning January 4, 2012, pursuant to the criteria set forth in the General Rating Formula for Rating Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130, Diagnostic Code 9411. When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In relevant part, the rating criteria are as follows: A 50 percent 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-term 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, Diagnostic Code 9411 A rating of 70 percent is assigned for 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 worklike setting); inability to establish and maintain effective relationships. Id. A rating of 100 percent is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or effects thereof, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran’s PTSD and their effect on the level of occupational and social impairment. Id. The Veteran underwent a VA psychiatric examination in January 2012 following his claim for an increased rating. The Veteran reported that his most prominent symptoms included feelings of dysphoria, lack of motivation and lack of energy. He relayed passing thoughts of death, but denied active suicidal ideation, plan or intent. When prompted, the Veteran elaborated that his thoughts of death referred to the proximity, manner and occurrence of his own passing. He also appeared to frequently recall the recent passing of his brother-in-law, whom he considered a friend, which therefore triggered increased depressive symptoms. He stated on one occasion that he did not wish to live in pain, but throughout the examination he consistently denied any suicidal ideation, plan or intent. The examiner also noted that symptoms of sleep impairment, irritability, emotional detachment, social isolation, and decreased attention and concentration could also be attributed to the Veteran’s PTSD. The VA examiner indicated that the impairment from the Veteran’s PTSD was mild in nature, and that the greatest impairment was attributable to the Veteran’s depressive condition and medical conditions. On multiple mental status examinations contained in the VA treatment records for the period from June 2013 to February 2017, the Veteran was consistently described as alert and oriented with normal thought processes and speech. There was no evidence of delusions or hallucinations, and during the entire time on appeal continued to repeatedly deny suicidal, homicidal or violent ideations. In addition, his insight and judgment were continually reported as fair. At a visit in June 2013, he stated that he was doing better, including with his sleep impairment. He denied issues with anger, and any suicidal or homicidal ideations. At a visit in October 2013, he denied suicidal or homicidal ideations and stated that he believed suicide would send him “straight to hell.” The Board acknowledges a visit in June 2014 where the Veteran expressed passive thoughts of suicide without intent or plan. These appeared to be triggered by reports of an ill family pet, and increased family related stressors. However, at subsequent visits between June 2014 and February 2017 he continued to deny suicidal ideation, even in the presence of several increased psychosocial stress factors. At a visit in September 2014, just several months after reporting suicidal ideations, the Veteran reported his depression was better, and that he had more energy and motivation. He indicated he had started to engage in a hobby outside of just watching television. He relayed reduced issues with sleep impairment with no nightmares. Between June and December 2016, the Veteran reported improvement in several symptoms since restarting medications, including improvement in sleep, mood and energy. He noted being able to be more physically active and denied feelings of hopelessness or helplessness, as well as suicidal or homicidal ideations. Lastly, although VA treatment records have noted that the Veteran was issued gun locks for his personal firearms, as noted above, the Veteran repeatedly denied any suicidal or homicidal ideations. He indicated the guns remain locked and in a cabinet. Upon review of the lay and medical evidence of record, both the symptoms and impairment reported by the Veteran and the observations and assessments by various examiners, the Board finds that a preponderance of the evidence is against a rating in excess of 50 percent at any point from January 4, 2012. 38 C.F.R. § 4.130, Diagnostic Code 9411. Together, the January 2012 VA examination, treatment records, and Veteran’s lay statements do not indicate symptoms which were productive of occupational and social impairment with deficiencies in most areas. There was no evidence of impaired judgment, or auditory or visual delusions. There was no evidence of obsessional rituals, neglect of personal appearance, inability to function independently, persistent impairment in thought process or content, evidence of delusions or hallucinations, or any disorientation. In addition, VA Medical Center treatment records noted sleep impairment and those symptoms attributable to the Veteran’s depressive disorder to cause the greatest impairment. There was also no evidence of obsessive ritualistic behavior, impaired impulsive control, or near-continuous panic or depression which interfere with routine ability to function. The Board expressly acknowledges a reported history of passive suicidal ideation in December 2014. Although suicidal ideation is contained under the criteria for a 70 percent disability rating, the Board finds that this single symptom did not manifest to a degree that more nearly approximates a higher disability rating. In this regard, the characterization of the severity of the disability by the examiner does not suggest that such symptom impacted the Veteran’s functioning, such that a higher rating is warranted. Indeed, the fact that there was no concern by the clinician that the Veteran had accessible guns in his home further reflects that the clinician did not find suicidal ideation to be resulting in functional impairment. At the time of the January 2012 VA examination, the VA examiner specifically noted the symptoms from the Veteran’s PTSD to cause only mild impairment. Thus, although suicidal ideation is a symptom associated with a higher rating, the overall functional impairment resulting from his PTSD is consistent with a 50 percent rating. In sum, the Board finds that the manifestations of the Veteran’s PTSD do not more nearly approximate the criteria for a disability rating in excess of 50 percent from January 4, 2012. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under §4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 118. Such is not shown here during the relevant period. Accordingly, a disability rating in excess of 50 percent is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel Mamis