Citation Nr: 18158411 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 14-14 663 DATE: December 14, 2018 ORDER Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s PTSD signs and symptoms have not manifested with occupational and social impairment with reduced reliability and productivity during the appeal. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.125, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1965 to August 1967. The Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference during a May 2017 Board hearing. A transcript of the hearing is included in the claims file. This case was previously before the Board in December 2017, when the Board remanded the matter on appeal to schedule the Veteran for a VA psychiatric examination and issue a supplemental statement of the case if any benefit was denied by the Agency of Original Jurisdiction (AOJ). There was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that the disability rating for his service-connected PTSD should be rated higher than the currently-assigned 30 percent disability rating. VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10 (2017). The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran appealed the initially-assigned disability rating; thus, the appeal period stems from December 30, 2004. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran’s service-connected acquired psychiatric disability has been evaluated under 38 C.F.R. § 4.130 using the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairments. See 38 C.F.R § 4.130, DC 9411. The General Rating Formula is as follows: A 30 percent rating is assigned for 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). Id. A 50 percent rating is assigned 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 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 for 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. The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DCs. See id. VA must consider all symptoms of a veteran’s disorder that affect his or her occupational and social impairment. See id. at 443. If the evidence demonstrates that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (2017). Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id. VA must consider all of the Veteran’s symptoms and resulting functional impairment as shown by the evidence in assigning the appropriate rating, and will not rely solely on the examiner’s assessment of the level of disability at the moment of examination. See id. At the outset, the Board finds that the frequency, severity, and duration of the Veteran’s PTSD signs and symptoms have not manifested with reduced reliability and productivity during the appeal. For example, March 2005 VA psychology counseling notes showed that the Veteran attended group therapy counseling for his PTSD signs and symptoms. A May 2007 VA primary care physician’s note showed that the Veteran denied having any anxiety or depression symptoms. A May 2008 VA primary care nursing note showed that a PTSD screen was negative. A September 2010 VA examination showed that the Veteran was married for the previous 34 years. He stated that he became easily upset at home and that this affected his relationship with his wife. He reported that he worked part-time as an electrician and that he was able to function well on the job, except that sometimes he got into arguments with some customers. He told the examiner that he had a few friends and that he related well to other Vietnam War veterans. He stated that he used to drink excessively after returning from Vietnam, but that he had been sober for many years. His present symptomatology included poor and fragmented sleep, waking two to three times per week due to bad dreams, recurrent thoughts of Vietnam, noise sensitivity, and being easily distracted and irritable. He described these symptoms as mild to moderate in severity. A mental status evaluation showed that he was cooperative during the interview, but that he appeared somewhat anxious and his mood appeared somewhat labile at times. He was dressed appropriately, with no evidence of auditory or visual hallucinations. The examiner noted that the Veteran was free from delusional thinking or any thought disorder, but he had some poor concentration during a part of the evaluation. The examiner determined that the Veteran was not considered suicidal or assaultive. The examiner concluded that the Veteran had frequent flashbacks, nightmares, and social isolation to some extent. The examiner determined that the Veteran’s PTSD signs and symptoms were moderate in severity. A February 2011 VA examination showed that the Veteran was previously treated in March 2004 for his PTSD symptoms but that he had not been hospitalized for this disability. The Veteran reported that he had not taken any medication or been treated for his PTSD since 2004. He reported that he had two children, with whom he had good relationships, and that he had been married since 1976, but that his marriage was in “name only.” He reported that in the 1990s, he attempted suicide by letting go of a steering wheel while driving intoxicated. (The Board notes that the Veteran reported this suicide attempt occurred in the early 1970s in a September 2011 VA psychiatry consultation note.) A mental status examination showed that the Veteran had disheveled clothes, unremarkable psychomotor activity, loud speech, indifference toward the examiner, and dysphoric mood. However, his affect and attention were normal and he was oriented to person, time, and place. While he had ruminations, his thought process was unremarkable and he understood the outcome of his behavior. He did not have any delusions or hallucinations, and his insight was fair. He also did not have any inappropriate behavior but he was compelled to check and recheck the locks on windows and doors at night. The Veteran reported poor sleep for over 30 years and feeling anxious at times. While the examiner noted that the Veteran had suicidal thoughts, the examiner clarified that this was in reference to the Veteran’s attempt in the 1990s when he let go of the steering wheel while driving. The examiner noted that the Veteran denied any current suicidal or homicidal thoughts. The Veteran was able to maintain personal hygiene and his impulse control was fair. The examiner noted that although the Veteran’s anger caused him to quit previous jobs, he also worked in the construction industry where job changes were common. The examiner stated that the Veteran had a successful 36-year career after active duty service as a union electrician. The examiner also noted that although the Veteran had a strained relationship with his wife, he had a good relationship with his two sons. The examiner determined that the Veteran’s overall PTSD signs and symptoms were mild in severity. In the June 2011 notice of disagreement (NOD), the Veteran stated that he was receiving treatment at a VA medical facility for his psychiatric symptoms. Similar symptoms and complaints as were noted in the February 2011 VA examination were noted in a September 2011 VA psychiatry consultation note. A mental status evaluation showed that the Veteran’s concentration and energy were low and that he avoided crowds due to his PTSD. He reported that his wife could not sleep in the same room as him because he talked in his sleep. He was alert and oriented to time, place, and person. His cognition was intact and he appeared well-groomed. His behavior was cooperative and his speech was productive and goal-directed. His mood was depressed and affect was appropriate to mood. His thought process was liner but alcohol affected his insight, judgment, and impulse control. The examiner stated that the Veteran did not have any hallucinations, delusions, or suicidal or homicidal ideation. A December 2011 VA psychiatry outpatient note showed that the Veteran’s symptoms had improved. The Veteran reported that he was doing well and that he was sleeping better. His depression was also better and he was drinking less. A mental status evaluation showed that he was alert and oriented to time, place, and person. His concentration and energy were fair. His appetite was good and he was well-groomed. His speech was productive and goal-oriented. His mood was less depressed and his affect was appropriate to mood. His insight and judgment were good, his impulse control was better, and his thought process was linear. He again did not have any hallucinations, delusions, or suicidal or homicidal ideation. An August 2012 VA psychiatry outpatient note showed that the Veteran’s concentration was fair and his anxiety was low. His appetite was good and his energy was fair. He had good sleep without the use of trazodone medication. He was alert and oriented to time, place, and person. His cognition was intact and his appearance was well-groomed. He was cooperative and his speech was productive and goal-directed. His depression was stable and his affect was appropriate to mood. Thought process was linear, and he had good insight, judgment, and impulse control. He again did not have any hallucinations, delusions, or suicidal or homicidal ideation. The medical processional assessed the Veteran’s symptoms as stable. Very similar symptoms were noted in a March 2013 VA psychiatry note, except that the Veteran’s energy was fair unless he was in pain and he slept well with medication. The medical professional also noted that the Veteran’s mood was mildly depressed and this affect was appropriate to mood. A March 2013 private progress note showed that the Veteran denied having any depression, visual or auditory hallucinations, suicidal thoughts, anxiety, memory loss or confusion, insomnia, anorexia nervosa, bulimia, bipolar disorder, or previous psychiatric care. A December 2013 VA examination showed that the Veteran’s psychiatric symptoms included depression, frustration, and chronic sleep impairment. He reported that he felt depressed six hours every two weeks, but that he had good self-esteem and average motivation. He did not have any manic or obsessive-compulsive disorder symptoms. He told the examiner that he had a history of suicide attempts, which included running a car into a tree in 1970, but he also stated that he had not had any suicidal ideations in the previous six months, and that he had not had any such ideations since 1970. He did not have any history of homicidal behaviors and had not had any such ideations in the previous six months. He described his temper as controlled, and that he lost control of his physical behavior one time in the past six months. He also reported that he lost control of his verbal behavior two times per month. Such episodes lasted five minutes and generally consisted of swearing. A mental status examination showed that the Veteran did not have problems with activities of daily living from a mental health perspective. He answered questions appropriately and was groomed within normal limits. He was oriented to person, place, and time. His psychomotor activity, eye contract, speech, mood, thought process and content, insight and judgment, and memory were within normal limits. He was cooperative, his affect was full, and he did not demonstrate any delusions. The Veteran reported that he had been married for the previous 37 years, that he and his wife had an average relationship, and that they lived together. The Veteran drove himself to the examination. He attended church and got along with others there. He told the examiner that he got along well with friends and family. He participated in household chores and shopping. He stated that he and his wife were not gainfully employed. The Board notes that the record shows that he had retired in 2006, at the age of 62, but that he continued to make minor amounts of money doing minor electrical work and he also volunteered five to 10 hours per week performing electrical work for people. He stated that he was not seeking employment and that he was not receiving Social Security Disability benefits. He told the examiner that he spent three hours per day watching television, three hours being on the computer, one hour per day reading, and one to two hours per day working on household chores. He told the examiner that he collected knives for fun. The examiner determined that the Veteran’s mental health symptoms would allow him to best work in a social environment with casual and infrequent social interactions. The examiner determined that the Veteran’s symptoms amounted to a mental disorder being formally diagnosed, but the symptoms were not severe enough either to interfere with occupational and social impairment or to require continuous medication. A March 2017 VA social worker’s note showed that the Veteran was attending monthly individual psychotherapy sessions for his PTSD. He denied feeling suicidal or homicidal, with thoughts, intent, or plans. The Veteran reported that he was the primary caregiver to his wife, who had dementia. He also reported that he was looking forward to an upcoming class reunion. A mental status evaluation showed that the Veteran made eye contact and was able to express himself appropriately. He was casually dressed, very cooperative, and seemed motivated for treatment. He was alert and oriented to time, person, and place. His speech was articulate and coherent. His affect and mood were congruent with his PTSD diagnosis. His though process was linear and concrete and his thought content was appropriate and non-delusional. He denied hallucinations. His insight and judgment were intact and good. His fund of knowledge was congruent with his education level and his recent and remote memory was intact. Very similar symptoms were noted in a May 2017 VA social work note, except that the Veteran again reported that he had a suicide gesture in 1970. However, he denied having any suicidal or homicidal ideation, gestures, or plan since that time. During a May 2017 Board hearing, the Veteran testified that he was receiving treatment for his PTSD symptoms at a VA facility. A March 2018 VA examination showed that the Veteran’s symptoms included mild memory loss, such as forgetting names, directions, or recent events. The Veteran reported that he was still married to his wife but he stated that they were separated. He reported that she lived in the same home as him and that she suffered from dementia. He stated that he had two adult children and no grandchildren. He told the examiner that he got along well with his son, who he saw often. However, he reported that several cousins and an aunt passed away in the previous year. He also told the examiner that he went out and helped people with electrical problems. He told the examiner that he retired in 2006. He stated that he was not seeing a psychiatrist and was not on medication for any abnormal psychiatric symptoms. He reported a remote history of a suicide attempt in the early 1970s; however, he also indicated that he did not recently or currently have thoughts of suicide. A mental status examination showed that the Veteran was congenial, cooperative, and relaxed. He was appropriately dressed and groomed. He answered questions appropriately and was alert and oriented to person, place, and time. His psychomotor activity and eye contact were within normal limits. His thought process was linear and goal-directed, and his speech was normal. He did not demonstrate anxiety symptoms, but he reported intrusive thoughts, increased startle reactions, hypervigilance, and preoccupation with past events. His mood was euthymic and his affect was congruent with his mood. His thought content did not demonstrate evidence of delusions or hallucinations. His memory was adequate to slightly impaired. His insight and judgment were within normal limits. Following an in-person psychiatric evaluation, the examiner determined that the Veteran’s PTSD signs and symptoms amounted to a formally diagnosed mental disability, but the symptom were not severe enough either to interfere with occupational and social functioning or to require continuous medication. In a November 2018 statement, the Veteran’s representative contended that the Veteran’s PTSD signs and symptoms warranted a 70 percent disability rating because the evidence showed suicidal ideation, decreased emotional problems, markedly decreased interest in and participation with social activities, a persistent problem with concentration with significant distress, and intrusive thoughts, recollections, and dreams. Given this evidence, the Board finds that the Veteran’s PTSD signs and symptoms have not manifested with occupational and social impairment with reduced reliability and productivity during the appeal. Specifically, the evidence noted above shows that the frequency, severity, and duration of the Veteran’s PTSD symptoms manifested with 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. The mental status evaluations noted in the VA treatment records during the appeal, as well as the September 2010, February 2011, December 2013, and March 2018 VA examination reports, show that although the Veteran had some mild to moderate symptoms of PTSD, including poor sleep, depression, and intrusive thoughts and recollections of Vietnam, these symptoms did not amount to occupational and social impairment with reduced reliability and productivity. In fact, the December 2013 and March 2018 VA examiners determined that although the Veteran had a mental disorder, the symptoms were not severe enough either to interfere with occupational and social impairment or to require continuous medication. While the adjudicator makes the determination of what evaluation is warranted for the service-connected PTSD, the examiners’s conclusions that the Veteran’s psychiatric disorder was summarized best by the criteria described under an evaluation less than 30 percent evaluation is evidence against a finding that the Veteran’s psychiatric disorder warrants an evaluation in excess of 30 percent. The Board has considered the November 2018 statements made by the Veteran’s representative that a 70 percent disability rating is warranted because the evidence showed the presence of suicidal ideation. However, a thorough review of the evidence of record, including the February 2011, December 2013, and March 2018 VA examination reports, the September 2011 VA psychiatry consultation note, and the May 2017 VA social worker’s note, shows that the Veteran’s complaints of suicidal ideation, one attempt, or one gesture occurred in the 1970s or 1990s. However, aside from noting this attempt in either the 1970s or the 1990s, he has consistently denied suicidal ideation, intent, or plan during the appeal. The facts of this case appear to be distinguishable from Bankhead v. Shulkin, 29 Vet. App. 10 (2017), in which the U.S. Court of Appeals for Veterans Claims (Court) held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130). Under the unique facts of Bankhead, the claimant was noted to have had recurrent suicidal thoughts and behaviors of varying severity, frequency, and duration throughout the relevant appeal period. Bankhead, 29 Vet. App. at 19-23. Here, the Veteran’s instances of suicidal ideation (passive or otherwise), attempt, or gesture either occurred approximately 34 years or 14 years prior to the beginning of the current appeal period, by themselves or when considered with other symptoms, did not cause the level of occupational and social impairment contemplated by the 70 percent disability rating. The Board notes that the VA treatment records and VA examination reports noted above overwhelmingly reflect that the Veteran has denied suicidal or homicidal ideations, intent, or plan since December 2004. Based on the facts of this case, the one instance of reported suicidal ideation, attempt, or gesture 34 years or 14 years prior to the appeal period does not more nearly approximate occupational and social impairment with reduced reliability and productivity. Accordingly, the preponderance of the evidence shows that an initial disability rating in excess of 30 percent for PTSD is not warranted during the appeal. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, DC 9411. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hodzic, Counsel