Citation Nr: 18156737 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 13-02 188 DATE: December 10, 2018 ORDER Entitlement to a disability rating higher than 30 percent for posttraumatic stress disorder (PTSD) from January 20, 2010 to May 27, 2015 is denied. FINDING OF FACT 1. For the appeal period of January 20, 2010 through May 27, 2015, the Veteran’s PSTD is shown to more closely approximate 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, mild memory loss (such as forgetting names, directions, recent events). 2. For the appeal period of January 20, 2010 through May 27, 2015, the Veteran’s PTSD did not result in 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 3. For the appeal period of January 20, 2010 through May 27, 2015, the Veteran’s PTSD did not result in 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. 4. For the appeal period of January 20, 2010 through May 27, 2015, the Veteran’s PTSD did not result in 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. CONCLUSION OF LAW The criteria for entitlement to a disability rating higher than 30 percent for posttraumatic stress disorder (PTSD) from January 20, 2010 to May 27, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1967 to October 1970, including service in Vietnam. His awards and decorations include the Purple Heart Medal. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which granted a 30 percent rating for PTSD, effective January 20, 2010. Before the appeal was certified to the Board, in a July 2016 rating decision, the RO increased the rating for PTSD to 50 percent, effective May 27, 2015. In a May 2017 decision, the Board, in pertinent part, denied a rating in excess of 30 percent for PTSD prior to May 27, 2015, and in excess of 50 percent thereafter. The Board also denied an effective date prior to January 20, 2010, for the award of the 30 percent rating for PTSD. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2018 Memorandum Decision, the Court set aside the portion of the Board’s May 2017 decision that denied a disability rating higher than 30 percent for PTSD prior to May 27, 2015 and remanded the matter for readjudication consistent with its decision. The Court affirmed the portion of the May 2017 Board decision that denied entitlement to an effective date earlier than January 20, 2010, for a 30 percent disability rating for PTSD, and dismissed the balance of the appeal, including the claims of entitlement to a disability rating higher than 50 percent for PTSD from May 27, 2015, and extraschedular referral for manifestations of a mental health disability. INCREASED RATINGS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Veteran’s PTSD has been rated under the criteria contained in the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). See Id. A 50 percent rating is warranted 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- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. See Id. A 70 percent rating is assigned when there is objective evidence demonstrating 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 worklike setting); inability to establish and maintain effective relationships. See Id. A 100 percent rating is warranted when there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger or 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. See Id. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that use of the term “such as” 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. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Court) held 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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 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. The Federal Circuit indicated that “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a disability rating higher than 30 percent for posttraumatic stress disorder (PTSD) from January 20, 2010 to May 27, 2015 The Veteran contends that he is entitled to a disability rating higher than 30 percent for PTSD from January 20, 2010 to May 27, 2015. He argues that a June 2012 examiner’s description of his symptoms at that time is consistent with, and corroborated by, a May 2015 examination which resulted in a 50 percent disability rating for PTSD. Factual Background The record on appeal contains the report of a September 2006 VA examination conducted in connection with the appellant’s claim of service connection for PTSD. During the examination, the Veteran reported that he had difficulty sleeping and being in crowds. He reported a recurring dream from Vietnam. He had never had any psychiatric treatment. The Veteran reported that he had worked as a lawyer from 1975 to 1980. Since 1980, he had worked as a real estate broker. He worked approximately 40 hours per week and reported no significant problems maintaining an excellent performance at work. He indicated that he had been married four times, and reported getting along well with both children who are quite close to him. He was very active in his church in a leader role, and handled his own finances successfully. The examiner did not notice any clinically significant symptoms of depression. The Veteran denied any panic disorder symptoms, homicidal ideation, and drug abuse, although he acknowledged heavy drinking. He was well-dressed and immaculately groomed, but quite overweight. The examiner observed that the Veteran was cooperative, had unremarkable motor activity and speech, and showed euthymic mood except when discussing traumatic events from Vietnam. He also had relatively broad range of affect that was appropriate and stable. Thought process was logical, coherent, and goal directed. There were signs of preoccupation with traumatic events from combat in Vietnam. He was alert, oriented, and free of confusion. He had relatively intact attention, concentration, and memory, with fair insight and judgment. The diagnoses were PTSD and alcohol abuse as well as cocaine and amphetamine dependence in full sustained remission. The examiner characterized the Veteran’s PTSD symptoms as mild to moderate. In a final November 2006 rating decision, the RO granted service connection for PTSD and assigned an initial 10 percent disability rating. On January 20, 2010, the Veteran filed a claim for entitlement to an increased rating for PTSD, stating that his condition had worsened. Specifically, he stated that he had “difficulty with personal relationships,” “mood, checking the perimeter of [his] house each night, difficulty in adapting to stressful circumstances, and long term memory.” The Veteran was examined again in June 2012. The examiner diagnosed the Veteran as having PTSD. The examiner characterized the Veteran’s level of occupational and social impairment as one 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 reported that he had married his fifth wife and continued to work part-time as a real estate agent. The examiner indicated that the Veteran did not exhibit markedly diminished interest or participation in significant activities. Rather, the Veteran reported that he continued to perform activities as he was physically able but did notice that he had less patience with his clients than before. He indicated that he was worried about not having a purpose after retirement. He reported a history of cocaine and methamphetamine abuse in the 1970s and 1980s, but also stated that he is in “full, sustained remission.” He admitted to alcohol consumption to aid his sleep, as he had intrusive memories and hypervigilance. He installed an alarm system that reduced his anxiety and subsequently reduced his alcohol use. The examiner observed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment independent from sleep apnea, and disturbances of motivation and mood. The examiner indicated that the Veteran did not exhibit panic attacks, memory loss, near continuous depression, impaired judgment, difficultly adapting to stressful circumstances, including work or a worklike setting, suicidal ideation, impaired impulse control, or an difficulty in establishing and maintaining effective relationships. The examiner noted that the Veteran was capable of managing his own financial affairs. On May 27, 2015, the Veteran’s occupational and social impairment with regards to all mental diagnoses was best summarized by the examiner as 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. No mental disorders other than PTSD were diagnosed. The Veteran’s VA claims file and VA e-folder were reviewed. He had been married for 8 years, a relationship that the Veteran reported as “very positive.” He reported that he has had difficulty maintaining relationships and had been told that he was “quick to anger” and “difficult to get along with.” His daughter died at age 41 due to brain cancer, but he stated that he is close to his adult son. He also reported that he has good relationships with his grandchildren. The Veteran also stated that he has some good friends, enjoyed hunting and golf, and that he tries to travel with his wife. He was still working although “his hours have dropped significantly.” He did not want to retire completely so he stayed busy a few hours per week. He denied significant mental health treatment history, but stated that he had increased symptoms in the past few years. The examiner noted symptoms of anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. He presented as fully oriented, with no gross impairment in mental status. His mood was dysthymic and had congruent but full range of affect. He denied psychotic symptoms and did not present with any active psychosis or history of such. He could manage his own financial affairs, and he stated that he had been steadily reducing his hours at work due to some increase in PTSD symptoms, as well as increased pain. He was able to work on his own with no specific requirements or obligations to others, but the examiner opined that he would likely have a considerably harder time functioning in a traditional civilian work setting or in a competitive full-time position. The RO increased his disability rating from 30 percent to 50 percent effective May 27, 2015 in a July 2016 rating decision. Analysis After review of the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for any period of the appeal. The record shows that the Veteran’s PTSD was manifested by symptoms associated with a 30 percent rating, including depressed mood, anxiety, and chronic sleep impairment, and symptoms associated with a 50 percent rating, including disturbances of motivation and mood. He also had symptoms that are not listed with a specific rating, such as avoidance, physiological reactivity upon exposure to cues that resembled his in-service stressors, and feelings of detachment. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. The Veteran did not report that these unlisted symptoms were present daily nor did the examiner conclude that the Veteran’s PTSD symptoms result in more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. While the Veteran’s reported symptom of disturbances in motivation and mood is contemplated by the 50 percent and 100 percent ratings, and he is competent to report subjectively perceived disturbances in motivation and mood, the Board finds that the Veteran’s overall impairment, including consideration of his disturbances of motivation and mood, more closely approximates the level associated with a 30 percent rating. The Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. Although the Veteran reported working part-time at the time of the June 2012 VA examination, there is no indication that he reduced his working hours due to his service-connected PTSD. Moreover, the examiner expressly stated that the Veteran’s PTSD did not produce symptoms which would have resulted in occupational impairment with reduced reliability and productivity, such as memory impairment, impaired thinking or judgment, or difficulty in establishing effective work relationships. The Veteran was also noted to be married and maintain good relationships with is family. Observed symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment and disturbances of mood, with no panic attacks, difficulty understanding complex commands, impaired judgment or abstract thinking, flattened affect, or stereotyped speech. Even in May 27, 2015, when the RO assigned a 50 percent disability rating, the Veteran could maintain a “very positive” relationship with his spouse, maintain relationships with his children, grandchildren, and friends, and still worked a few hours a week to keep himself from retiring completely. His activities were limited due to physical pain by his own admission, not because of his PTSD symptoms, and even in a limited state he enjoyed hunting, golfing, and planned to travel with his spouse. The Veteran also did not show impaired memory, judgment, abstract thinking, flattened affect, stereotyped speech, nor panic attacks of more than once a week. The Veteran argues that his statements in May 2015 are similar to his statements in June 2012, and that his condition was as bad back in June 2012 as it was in May 2015. The Board considered both the statements and the examiners’ opinions and finds that there were meaningful differences that point to the Veteran’s condition being worse in May 2015 compared to June 2012. First, the May 2015 observed symptoms that were not present in June 2012, such as panic attacks that occur weekly or less often, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. These are symptoms that are meaningful for VA rating purposes as they are listed criteria in 38 C.F.R. § 4.130, DC 9411, and the examiner determined that they impacted the Veteran’s overall functioning. Second, the Veteran’s work hours decreased from working part-time in June 2012 to a few hours per week in May 2015. Although there is no indication that the reduction was involuntary or solely due to his PTSD symptoms, resolving doubt in favor of the Veteran, the Board finds that they were at least partially due to his PTSD symptoms, especially as the examiner opined that the Veteran “would likely have a considerably harder time functioning in a traditional civilian work setting.” The Board also notes that throughout the appeal period there is no evidence of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, due to the Veteran’s PTSD symptoms, as described in the General Rating Formula for Mental Disorders for a 70 percent rating. As listed above, the Veteran did not show symptoms such 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); or inability to establish and maintain effective relationships. Also, both the June 2012 and May 2015 examiners opined that the Veteran’s disability picture more closely approximated the description for a 30 percent evaluation. See Id. Turning to whether the Veteran warrants a 100 percent rating at any time during the appeal period, the Board notes that throughout the appeal period there is no evidence of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or, significant memory loss such as the names of close relatives, his occupation, or his name. The Board also cannot find that the evidence of record demonstrates total social and occupational impairment at any time during the appeal period. Generally, throughout the appeal period, the Veteran is shown to be working, apparently voluntarily reducing hours while maintaining close relationships with family and friends. Again, both the June 2012 and May 2015 examiners evaluated the Veteran to have “occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks,” a description that more closely approximates a 30 percent evaluation. Accordingly, for the appeal period from January 20, 2010 to May 27, 2015, the Board finds that a 30 percent evaluation is warranted based on the evidence of record at this time; to that extent the appeal is granted at this time, and in all other aspects, the Veteran’s claim for increased evaluation for his PTSD is denied. See 38 C.F.R. §§ 4.7, 4.130, DC 9411. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yun, Associate Counsel