Citation Nr: 18157183 Decision Date: 12/13/18 Archive Date: 12/11/18 DOCKET NO. 15-09 343 DATE: December 13, 2018 ORDER Entitlement to the assignment of an initial 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Throughout the entire appeal period, the Veteran’s PTSD has been manifested by symptomatology more nearly approximating occupational and social impairment with deficiencies in most areas, but not by total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating of 70 percent for the entire appeal period under review for PTSD have 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 FINDING AND CONCLUSION The Veteran had active service from August 2001 to August 2005. The Board notes that the Veteran has perfected other issues for appellate review but is awaiting a Board hearing as to those issues. Accordingly, they will be the subject of a separate Board decision. Furthermore, additional evidence, to include VA treatment records, was added to the claims file subsequent to the issuance of the September 2018 supplemental statement of the case. This additional medical evidence largely relates to issues that are not currently part of this appeal. While some of the evidence does refer to the issue on appeal, the information contained is merely cumulative and/or redundant of the evidence previously received and considered by the Regional Office (RO). As such, waiver of RO consideration is not necessary. See 38 C.F.R. §20.1304(c). Laws and Regulations 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). Facts and Analysis The Veteran contends that a 70 percent rating is warranted for his service-connected PTSD since September 17, 2012, the date of his claim for service connection. See September 2018 Agent Correspondence. The Board agrees. In connection with his September 2012 claim, the Veteran underwent a VA PTSD examination in October 2012. The examiner diagnosed PTSD, depressive disorder, and alcohol abuse in remission, and noted that the symptoms of: anger and irritability, sadness and anxiety with re-experiencing the trauma, increased arousal, and avoidance symptoms, were attributable to the Veteran’s PTSD. The examiner equated the Veteran’s level of impairment due to PTSD as that of occupational and social impairment with reduced reliability and productivity. The examiner noted that as to occupational impairment, the Veteran’s PTSD caused him to be irritable and angry in job interview and with police officers. As to the Veteran’s social impairment, the examiner noted that the Veteran got angry and irritable, hypervigilant, and had an exaggerated startled response around people. He was constantly on guard and suspicious of others, which prevented him from socializing. The Veteran reported that the was currently married but separated and had two younger daughters with whom it was hard to “keep his cool.” He said it was “bad” with his parents and he had pushed away his younger brother. He noted that he planned to continue school for his Bachelor’s degree in Nursing, and that he had good grades. He explained that he experienced periods of depression where he felt down and sorry for himself and would not eat for an entire day. He said alcohol helped and he would sometimes drink and talk with his best friend. He said his depression could last for about a day and reoccur once a week. He endorsed thoughts of harming himself, said that he “didn’t care about the speed limit,” lived on the edge, and wanted to stab a boar. He put himself in dangerous situations. He told the examiner that he avoided thinking about trauma by shooting birds and cats because it gave him satisfaction, and that he felt “numb” and had problems with affection. His wife told him that he could “destroy somebody” with words. He also expressed that he had problems getting to sleep, and had an exaggerated startled response if, for example, he witnessed someone reach into their coat to retrieve a phone. He said he acted impulsively if he was angry or challenged. The examiner noted symptoms to include: depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; suicidal ideation; and impaired impulse control, such as unprovoked irritability with periods of violence. Other symptoms included irritability, anger, and alcohol abuse. The Veteran underwent an additional contract PTSD examination in September 2017. The examiner noted diagnoses of PTSD and depressive disorder and noted that the Veteran struggled occupationally in that he had significant problems responding to authority, but was lucky to be in a top position so that he did not have to deal much with authority. The examiner also said that the Veteran had been verbally violent in the past, had chronic irritability as an expression of depressed mood, and chronic sleep impairment. The Veteran explained that he worked in a dialysis center and was in charge of the entire clinical operation of his clinic. He said he enjoyed interacting with his patients. He explained that there was a level of stress with his wife but that she was committed to him and he was grateful for her. The examiner noted symptoms including: suspiciousness; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; an inability to establish and maintain effective relationships; and impaired impulse control. Physically, the Veteran was very intense in gaze, tone and conversation. He denied current suicidal or homicidal ideation, but acknowledged that he had in the past thought about seriously hurting or ending others’ lives whom he considered a threat or a challenge. The Veteran explained that he barely slept, got road rage, and avoided crowds. He said he had no friends. However, he explained that when working at the dialysis clinic, he was “on mission” and calm. In a January 2018 VA mental health treatment note, the Veteran reported ongoing anxiety and irritability and that one of his main concerns was difficulty relating to others, including at work. The Board finds that the Veteran’s PTSD symptoms, for the entire appeal period, more closely approximate that of occupational and social impairment with deficiencies in most areas. In this regard, at the Veteran’s October 2012 PTSD examination, he endorsed feelings of harming himself, detachment, and strained familial relationships. Indeed, he reported that he was separated from his wife, struggled around his daughters and parents, and had “pushed away” his brother. He reported that alcohol was his means of feeling better. The examiner attributed the bulk of the Veteran’s occupational and social impairment to his PTSD, indicating that the Veteran struggled with irritability and anger in job interview, and was angry, irritable, and hypervigilant in his social life. His constant guard and suspicious precluded him from socializing. Similar PTSD symptoms were reported at the September 2017 examination. Indeed, while the Veteran endorsed a somewhat better relationship with his wife at that time, he expressed that he did not have any friends nor a relationship with other family members. Occupationally, while the Veteran noted that he was in charge of a clinical operation team, he also expressed that he struggled with authority and with work relationships. Moreover, though he denied suicidal and/or homicidal ideation at the time of the examination, he expressed that he had homicidal thoughts towards those who challenged him. Despite demonstrating many serious symptoms throughout the entirety of the appeal period, to include suicidal and/or homicidal ideation, difficulty in maintaining effective work and/or social relationships, extreme anger and irritability, and extreme hypervigilance, the Board finds that the Veteran has not been found to have the symptoms generally contemplated by a 100 percent rating, to include gross impairment in thought processes or communication, disorientation, memory loss for own occupation or own name, or an intermittent inability to perform activities of daily living. Indeed, the Veteran has maintained a senior position in a medical setting as well as his marriage. Thus, it is not shown from the evidence of record that he suffers from total occupational and social impairment. For these reasons, the Board finds that a 70 percent rating, but no higher, is warranted for the Veteran’s PTSD for the entirety of the appeal period. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel