Citation Nr: 18153885 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-51 202 DATE: November 28, 2018 ORDER Entitlement to the assignment of an initial rating in excess of 50 percent prior to November 16, 2016 or in excess of 70 percent from November 16, 2016, for posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. Prior to November 16, 2016, the Veteran’s PTSD was manifested by symptomatology more nearly approximating occupational and social impairment, with reduced reliability and productivity. 2. Since November 16, 2016, the Veteran’s PTSD has been manifested by symptomatology more nearly approximating occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent, prior to November 16, 2016, for PTSD, have not been met. 38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2018). 2. The criteria for an initial rating in excess of 70 percent, since November 16, 2016, for PTSD, have not been met. 38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1970 to November 1972. During the course of the appeal, the AOJ inferred and awarded a TDIU award in a May 2018 rating decision. The Veteran did not disagree with the assigned effective date. PTSD Disability ratings are determined by the criteria set forth in the VA Schedule for Rating Disabilities, and are intended to represent the average impairment of earning capacity resulting from the disability. 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 rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. PTSD is evaluated under VA’s General Rating Formula for Mental Disorders. Under these criteria, a 50 percent rating is warranted where the psychiatric condition produces 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. 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. As the United States Court of Appeals for the Federal Circuit has held, 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). 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). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). A. Increased Rating in Excess of 50 Percent Prior to November 16, 2016 The Veteran contends that the initial rating of 50 percent assigned for PTSD as of October 31, 2012 should be higher. In connection with his October 2012 claim, the Veteran underwent a VA PTSD examination in August 2013. The Veteran noted the diagnosis of PTSD and assessed its level of impairment as that of 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 Veteran noted that he had been married two times, had three children, but was not currently in a relationship. He described a good relationship with his children and said that he lived with his son. He also said that he had friends “all over” and occasionally spent time with them. He noted that he was not in close contact with his sisters and saw his parents on occasion. He noted that he tried to work part-time as a bricklayer, but mostly spent his days working on his motorcycle with his son and grandson. He said he did a lot of reading, and worked on fixing up radios. The Veteran described experiencing nightmares and insomnia. He said he thought about his experiences in the Army every day and took medication though he disliked the side effects. He described past substance abuse issues but noted that he had lately been abstinent. The examiner noted that symptoms of his PTSD included anxiety; panic attacks more than once a week; chronic sleep impairment; mild memory loss; and impaired impulse control. The Veteran underwent a VA psychiatric evaluation in August 2013. He described to his provider experiencing anxiety attacks and waking up terrified because he felt people sneaking up on him. He said he was easily startled. He denied any thoughts of suicide. His concentration and memory were grossly intact, his thought processes were fairly linear, his psychomotor activity was calm, and he did not demonstrate any thought delusions. In an August 2013 VA psychotherapy note, the Veteran appeared to be cooperative and friendly. He presented with a blunted mood and affect. No significant thinking or memory problems were observed, and he maintained good contact during the session. He denied any suicidal or homicidal ideation, plan, or intent. He reported struggling with increased PTSD symptoms after his earlier, August 2013 VA PTSD examination. He said he had problems related to sleep, anger, hypervigilance, avoidance, and depression. He said he stopped drinking approximately three months earlier, and he appeared open to treatment options and motivated to change. A June 2015 VA primary care treatment note shows that the Veteran had a significant history of PTSD but had not undergone mental health treatment since 2013. He expressed to his VA treatment provider that he had experienced a significant amount of anxiety. At a July 2015 VA psychiatric consultation, the Veteran denied any suicidal or homicidal ideation, and said he was seeking therapy due to experiencing increased problems related to his PTSD. He said he was having flashbacks at night and a difficult time coping with people. He said he was having difficulties with his son with whom he lived. He did not have a stable place to live and was struggling financially. An August 2015 VA psychology note shows that the Veteran denied any suicidal or homicidal ideation, plan, or intent. He denied any significant changes in mood, but stated he had been experiencing nerves which impacted his appetite. He said he was running and studying a lot and was interested in pursuing a Bachelor’s degree in project management. An August 2016 VA mental health note reflected that the Veteran had only sought sporadic psychiatric treatment over the past couple of years. He reported anxiety, stress, agitation, financial concerns, and a lack of social support. A September 2016 depression screening revealed moderately severe depression. An October 2016 VA psychiatric treatment note reflected that the Veteran had neglected to keep follow-up appointments, but reported anxiety, depression, insomnia, and panic attacks. He reported experiencing six to eight hours of restful sleep on most nights with weekly anxiety episodes and said he took naps if he was depressed or angry. He denied aggression and said he practiced meditation for relaxing. He said he exercised regularly, and denied any suicidal or homicidal ideation or audio or visual hallucinations. He said he helped his sister with house work and yard work. The Veteran is competent to report his feelings and describe symptoms regarding his PTSD. Taking into consideration the Veteran’s own descriptions of his symptoms, as well as the medical evidence of record, the Board finds that the Veteran’s service-connected psychiatric disability manifested in symptoms most closely approximating those contemplated by the currently assigned 50 percent rating, causing occupational and social impairment with reduced reliability and productivity. Indeed, prior to November 16, 2016, the Veteran consistently denied experiencing suicidal or homicidal ideation. Though he endorsed anxiety, stress, agitation, nightmares, and insomnia, he also reported that he generally experienced restful sleep, and participated in leisure activities such as exercise, meditation, and that he helped his sister with house work and yard work. At his August 2013 VA examination, he described a good relationship with his children and said he had friends all over with whom he maintained contact. Though he described a past history of substance abuse, the Veteran told a VA treatment provider in August 2013 that he had abstained from substances for the prior three months and was open to and motivated to change. He also showed an interest in pursuing a Bachelor’s degree in project management. Given the foregoing, the Board finds that the Veteran’s symptoms prior to November 16, 2016, were shown to manifest in occupational and social impairment with reduced reliability and productivity, warranting the 50 percent rating presently assigned, and do not reach the level of severity and impairment contemplated by higher 70 or 100 percent ratings prior to November 16, 2016. Accordingly, the Board finds that a rating in excess of 50 percent for PTSD is not warranted prior to November 16, 2016. B. Increased Rating in Excess of 70 Percent Since November 16, 2016 The RO has awarded a 70 percent rating for PTSD effective November 16, 2016. This date corresponds with a November 2016 VA examination report, in which the VA examiner indicated that the Veteran’s disability manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment thinking and/or mood. The Board finds that a higher schedular rating of 100 percent during this time period is not warranted, as total occupational and social impairment is not shown by the record. At the November 2016 VA examination, the Veteran explained that he lived alone and did not often see his sister and uncle, who both lived nearby, though they took him to the grocery store and to doctor’s appointments. He said he preferred to be alone and had no friends or social contacts. He said that he had intended to start a motorcycle repair business and had purchased all the supplies to do so, but his son had stolen everything. He told the examiner that he had undergone infrequent mental health treatment, but had recently started seeing a new counselor. He said he continued to struggle with sleep, nightmares, irritability, lack of patience, limited tolerance, and great irritation with authority figures. Symptoms noted included: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss; impairment of short and long-term memory; disturbances of motivation or mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; an inability to establish and maintain effective relationships; obsessional rituals which interfere with routine activities; and impaired impulse control. Behaviorally, the examiner described that the Veteran had appropriate grooming and hygiene, smiled readily, maintained appropriate eye contact, and easily established rapport. He responded to questions and appeared cooperative. He demonstrated a good sense of humor and appeared reasonably aware of nonverbal communication. He spoke at a typical volume, rate, and rhythm. There was no evidence of major articulation or grammatical errors, nor of expressive or receptive language difficulties. His overall mood was described as mildly irritable with appropriate variation of affect. His level of activity was within an expected range with no evidence of lethargy or agitation. There was no overt evidence of disordered thinking. His thoughts were logical and easy to follow. His perception appeared based in reality. There was no evidence of auditory or visual hallucinations. He was able to demonstrate reasonable insight and judgment. His thought content was focused upon things that irritated him. The Veteran was able to express an understanding of where he was and the nature of the appointment. When asked to repeat a series of random numbers he displayed mild deficits in attention and concentration. There was evidence of mild deficits in the areas of immediate, short-term, and long-term memory. He denied active or passive suicidal ideation. Since November 16, 2016, the Veteran’s PTSD has not been manifested by the symptoms contemplated by a 100 percent rating pursuant to Diagnostic Code 9411. Despite demonstrating some serious symptoms at his November 2016 VA examination, to include weekly panic attacks, obsessional rituals, memory impairment, and difficulty in maintaining work and/or social relationships, the Veteran was not found to have the symptoms generally contemplated by a 100 percent rating, to include gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation, memory loss for names of close relatives, own occupation, or own name, or an intermittent inability to perform activities of daily living. Indeed, the examiner described that the Veteran had appropriate grooming and hygiene, no overt evidence of disordered thinking, and only displayed mild deficits in attention and concentration and mild deficits in the areas of memory. More, he denied active or passive suicidal ideation. While a TDIU has been assigned from the date of the examination, indicating occupational impairment, the examiner did not indicate that the Veteran had total occupational and social impairment. Although the Veteran prefers to be alone, he has maintained a relationship with his sister and uncle who help with chores and doctors’ appointments. He is able to groom himself, respond to questions from physicians, cooperate, and maintain a good sense of humor. He has ordered thinking with logical thoughts. His perception has been reality based. Based on these capabilities, the Board finds that total social and occupational impairment warranting the assignment of a 100 percent rating from November 16, 2016, is not shown by the evidence of record. (Continued on Next Page) In sum, the evidence of record is against a finding that the Veteran’s service-connected PTSD has been so severe as to warrant the assignment of initial ratings greater than 50 percent prior to November 16, 2016 and greater than 70 percent from November 16, 2016. As such, the benefit-of-the-doubt rule is not for application, and the appeal is denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel