Citation Nr: 18154633 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-59 747 DATE: November 30, 2018 ORDER A rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s service-connected PTSD is manifested by occupational and social 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; 38 C.F.R. § 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1968 to September 1970. This rating matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). He received the Combat Infantryman Badge. A rating in excess of 50 percent for post-traumatic stress disorder (PTSD). 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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 reasonable doubt as to the degree of the disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all cases, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence that bears on occupational and social impairment, rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Percentage ratings for mental health disabilities are based on the criteria in the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list but, rather, serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating for a mental disorder. Evaluation under § 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). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Indeed, “VA must engage in a holistic analysis” that assess the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Veteran seeks a rating in excess of 50 percent for his PTSD. Under General Rating Formula for Mental Disorders, a 50 percent rating is assigned 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 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. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 warranted for total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. After review of the relevant medical and lay evidence, the Board finds that that a rating in excess of 50 percent is not warranted. In a statement received in November 2016, the Veteran asserts that his PTSD negatively affects his ability to have interpersonal relationships, as well as normal peace of mind. He also indicated that his marriage was ending due to his inability to engage in normal family functions and his overwhelming need for isolation. He also reported depression, loneliness, fatigue, and anxiety. VA treatment records from July and August 2015 showed improvement in his depression and PTSD after weekly therapy and cognitive behavioral therapy. He denied suicidal ideation. He lived alone and sought isolation, but it was also noted that he received support from his wife and son. He discussed an upcoming family reunion and a visit from his wife. He was planning to retire in the near future and reported staying busy and coping well. His impending retirement caused him some anxiety. He also indicated he had memory issues and these were noted to possible be from depression/life changes, age related, or dementia. The Veteran was afforded a VA examination in May 2016. His documented symptoms included depressed mood, anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships, lack of energy, and social withdrawal. The examiner noted that a review of psychiatric records indicated that his symptoms had been reasonably well controlled with psychotropic medications. In regard to the Veteran’s reports of being permanently disabled, the examiner indicated that while symptomatic, particularly in regard to severe nightmares, he otherwise presented with an improved mental status. It was also noted that his retirement was not due to job performance as his employer welcomed him to stay in his position. Further, recent changes in his mental status were likely due to his adjustment to moving states and reconciling with his wife after ten years. The VA examiner concluded the Veteran’s service-connected PTSD demonstrated occupational and social impairment with reduced reliability productivity. A VA mental status examination in June 2016 showed the Veteran to be alert and dressed appropriately. He was cooperative with a depressed mood and a congruent affect. His thought process was linear, logical, and goal directed. His thought content was reality based without hallucinations and delusions. He was depressed and had nightmares every night. He had fair insight and judgment. He had no suicidal ideation. He was noted to have positive social supports including marriage, children, and a stable environment. He also had an optimistic outlook, future goals, and ongoing mental health care relationships with good treatment engagement. A September 2016 disability benefits questionnaire (DBQ) reflected that the Veteran had reconciled with his wife, but had ongoing marital strain due to his PTSD. He reported last working in December 2015 and that his PTSD had contributed to poor focus and forgetfulness. The symptoms noted were depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. The examiner concluded the Veteran’s service-connected PTSD demonstrated occupational and social impairment both with reduced reliability productivity and with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. Treatment records for his psychiatric disorder throughout the pendency of this appeal consistently showed the Veteran to be fully oriented, appropriately groomed with normal speech and organized thought. There was repeatedly no evidence of psychosis shown on these mental status examinations and no suicidal or homicidal ideations. Insight and judgment were fair during this period. After reviewing the relevant medical and lay evidence, to include as highlighted above, the Board finds that the Veteran’s impairment due to his symptomatology more nearly approximated the assigned 50-percent rating for the period on appeal. 38 C.F.R. §§ 3.400, 4.1, 4.10, 4.130, DC 9411. Indeed, the Veteran retired as planned with no noted job performance issues. While the November 2016 examiner indicated an inability to establish and maintain effective relationships, it was also noted that he had reconciled with his wife and was still in close contact with her prior to the reconciliation. This evidence tends to show social impairment of changing severity (lower in 2015 and improved with medication as noted by the May 2016 VA examination report) and duration (recent reconciliation). Other treatment notes indicate that he also maintained a close relationship with his son. The Board finds that such evidence shows reduced reliability in occupational and social function, but not an inability to establish and maintain effective relationships. In this regard, the September 2016 DBQ indicated that the Veteran’s PTSD strained his marital relationship. The Board finds such evidence tends to support a severity indicative of reduced social function. Indeed, given the frequency, nature, and duration of the social impairment symptoms, the Board finds that they are more nearly approximated by occupational and social impairment with reduced reliability and productivity. Additionally, with the exception of the 2016 DBQ, the Veteran was consistently found to be appropriately groomed with good hygiene. The evidence also shows that the Veteran’s thought process was linear, logical, and goal directed. His thought content was reality based without hallucinations and delusions. He had fair insight and judgment. See, e.g., June 2016 VA mental status examination. The Board finds such evidence tends to weigh against a finding of a deficiency in an area, such as work, school, judgment, or thinking. The Board notes that the Veteran had demonstrated depression throughout the appeal period, to include a VA treatment and upon compensation examination. Although the 70 percent rating criteria contemplate deficiencies in “most areas,” including work, school, family relations, judgment, thinking, or mood, such deficiencies must be “due to” the symptoms listed for that rating level, “or others or others of similar severity, frequency, and duration.” Vazquez–Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). That is, simply because the Veteran has depressed mood, and because the 70 percent level contemplates a deficiency in “mood” among other areas, does not mean his PTSD rises to the 70 percent level. Indeed, the 30, 50, and 70 percent criteria each contemplate some form of mood impairment. The Board, instead, must look to the frequency, severity, and duration of the impairment. Id. Here, the Veteran’s depressed mood is expressly contemplated by the 50 percent criteria, which contemplates “disturbances” in mood. 38 C.F.R. § 4.130. The Veteran is adequately compensated for his depression symptomatology and memory impairment. Furthermore, the Veteran’s symptoms regarding his memory are also entailed in the 50 percent rating (e.g. retention of only highly learned material, forgetting to complete tasks). While the Board’s main focus on the impact of the symptomatology present, the Board also notes as a factor the absence of suicidal ideation. As noted in Bankhead, the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas. The Board finds the evidence showing the Veteran’s affirmative denial of such, to include as VA treatment in July and August 2015 and in June 2016, weighs against a finding that the Veteran’s disability picture more nearly approximates the next-higher criteria. In sum, the Board finds that the totality of the evidence shows that the disability picture for the Veteran’s PTSD warrants a 50 percent rating for the period on appeal. The Board has applied the benefit of the doubt where appropriate. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel