Citation Nr: 18157740 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 17-01 412 DATE: December 13, 2018 ORDER Entitlement to an initial disability rating in excess of 50 percent for post-traumatic stress disorder (PTSD), based on military sexual trauma (MST), is denied. FINDING OF FACT Since October 20, 2014, the Veteran’s PTSD was manifested by occupational and social impairment with reduced reliability and productivity, with symptoms such as depression, anxiety, chronic sleep impairment, anger and irritability, social isolation, panic attacks more than once per week, and passive suicidal ideation. CONCLUSION OF LAW The criteria for an initial increased evaluation in excess of 50 percent, for post-traumatic stress disorder (PTSD), based on military sexual trauma (MST), have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1977 to December 1983 in the United States Air Force. This current appeal comes to the Board of Veterans’ Appeals (Board) from a May 12, 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Duty to Notify and Assist Neither the Veteran nor her representative identified any shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board thus finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced because of the Board’s adjudication of the claims below. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, 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. 38 C.F.R. § 4.126 (a) (2017). When evaluating the level of disability from a mental disorder, VA also will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initial rating assigned, consideration must be given to the evidence since the effective date of the claim as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service connected PTSD is currently evaluated as 50 percent disabling, effective October 20, 2014. Her PTSD is rated under Diagnostic Code 9411 of the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411 (2017). Under the General Formula, a 50 percent rating is assigned 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. Id. A 70 percent rating 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned 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. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term “such as” in the rating criteria 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Initial Increased Rating: PTSD A mental health outpatient note, from April 22, 2015, reported that the Veteran was irritable, depressed, anxious, and was having nightmares. She did not have psychosis, her speech was normal, and she denied suicidal and homicidal ideations. The Veteran was afforded a VA examination in May 2015. The Veteran reported that her social relationships in the Air Force were “fine” until she was sexually assaulted, after that she became more socially withdrawn. She stated that her first marriage ended because of the MST. The Veteran explained that she has struggled to be in relationships because she does not trust others, she was living with her son, his wife, and their children; they were supposed to move out of her house but opted to stay because the Veteran was feeling “lonely.” She said that she speaks with her mother and a few of her siblings, has a few friends, and goes to church and college. After discharge, the Veteran worked in a group home for mentally disabled adults; she explained that she “sabotaged” herself by being less attentive with the patients. She next worked at a Wal-Mart where she was eventually promoted to a manager position; unfortunately, she injured her knee at work in 2005 and has not worked since. The Veteran also endorsed a history of sexual trauma from the time she was 9 years old. She reported a hospitalization in 1983 for a suicide attempt; and was again hospitalized in 1984 and 1986 for attempting suicide. She continues to have intrusive thoughts about her MST, and endorsed nightmares a few times a week. The Veteran describes having flashbacks that makes her nauseous and panic attacks 3 to 4 times a month, she has strong feelings of worthlessness, persistent anger, and few friends. She told the examiner she is chronically irritable, that she isolates herself and is “always looking over her shoulder.” She reported sleeping about 6 to 8 hours when she takes medication to sleep. The Veteran also has symptoms of depression, has gained weight, and has recurrent thoughts of death; she denied homicidal ideations and symptoms of psychosis. The past treatment notes revealed possible bipolar disorder, and she told the examiner she had some symptoms of mania/hypomania which last for a few days, she also described racing thoughts and being distracted. She was arrested once in 2002 for “bad checks” and was a victim of armed robbery in 1992 which the examiner says likely increased her hypervigilance. The Veteran’s active symptoms for ratings purposes were: depressed mood, anxiety, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The examiner noted the Veterans affect was dysphoric. She scored a 4 on the Beck Depression Inventory-II which is indicative of significant depression. The Veteran’s reported in May 2015 that her job performance did not change until after her MST, that she does not sleep, she does not want to be around anyone, and feels useless. In a mental health outpatient note, from July 14, 2015 the Veteran reported that she still had nightmares 2 to 3 times per week, but that she was less engaged with her nightmare and was sleeping better. She again reported 2 to 3 nightmares a week on November 17, 2015; she described her mood as fair and denied suicidal and homicidal ideation. On December 30, 2015 a psychologist noted that the Veteran had a history of psychotic features when depressed. During the pendency of this appeal, the Veteran has been taking college courses. On March 31, 2016, she met with a Vocational Rehabilitation Counselor (Counselor). The Counselor noted that the Veteran was scheduled to graduate in the Spring of 2016. The Veteran reported that she felt confident about future interviews, she had been volunteering at the Women’s Space, had been attending job seminars, and she showed up to the appointment on time and dressed in casual business attire. An additional mental health notes report that the Veteran denied suicidal and homicidal ideations on May 23, 2016. The Veteran met with her Counselor again on June 27, 2016. She reported struggles in school due to being enrolled in a PTSD study throughout the semester which greatly affected her progress. Due to her struggles, she failed a class and her graduation was delayed. In a July 19, 2016 mental health note, the Veteran denied suicidal and homicidal ideations. On October 13, 2016 she reported no problems or concerns. In her substantive appeal from December 16, 2016 the Veteran stated that she was very depressed, having night terrors, that she did not want to be around people, and she was “tired of living this way.” A letter was sent to the Veteran on June 29, 2017 informing her that the service and benefits she was receiving under the Vocational Rehabilitation and Employment program were ending because the Veteran had not kept the program informed of her progress in school or employment. The letter noted that the Veteran was currently employable and had an Associate’s Degree and several years of coursework at the University of New Orleans. Analysis The Veteran endorses trouble sleeping, depression, feelings of uselessness, and a desire to be alone. Her medical records confirm that nightmares are consistent, but improving, and that her desire to be alone is persistent; also, the May 2015 examiner found the Veteran to have significant depression and near continuous panic. However, the Veteran has shown the ability to go to school, volunteer, live with her family, and she has also mentioned having a few friends. Despite her not finishing her vocational rehabilitation program, her Counselor stated that she is capable of substantial employment because she does have an Associate’s Degree. Additionally, she was found to be a motivated job candidate who expressed confidence going into interviews. While she has expressed depression, uselessness, panic, and sleep impairment she has also told examiners that she has no issues, a fair mood, and denied suicidal and homicidal ideations in recent interviews. The Veteran has not consistently displayed symptoms that warrant a 70 percent evaluation. The Board understands that some of the Veteran’s symptoms may be ones described under Diagnostic Code 9411 as warranting a 70 percent evaluation; however, the Board must evaluate the symptoms as they pertain to the Veteran’s overall occupational and social functioning. Vazquez-Claudio, 713 F.3d at 118. She not only has been found capable of maintaining substantial employment, she also has shown she can volunteer, live with her family, and have friends. At no time during this appeal has she endorsed suicidal ideations or obsessional rituals; such preceded the appeal. She communicates well and functions independently. the overall disability picture presented during the appellate period most closely resembles the criteria for a 50 percent rating, and no higher. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Harner, Associate Counsel