Citation Nr: 18160079 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 17-03 547 DATE: December 21, 2018 ORDER Entitlement to an increased rating greater than 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s PTSD is manifested by occupational and social impairment with reduced reliability and productivity due to symptoms such as depression; anxiety; chronic sleep impairment; disturbances of motivation and mood; impaired impulse control such as unprovoked irritability with periods of violence; recurrent, involuntary, and intrusive distressing memories; avoidance behavior; feelings of detachment; diminished interest; anger outbursts; hypervigilance; exaggerated startle response; and concentration and mild memory problems, all resulting in deficiencies in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW The criteria for a disability rating greater than 50 percent for PTSD have not been met at any time during the period of the appeal. 38 U.S.C. §§ 1155, 5107 (2012), 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from July 1991 to October 1991 and from January 2004 to April 2005 with service in Iraq. Entitlement to an increased rating greater than 50 percent for PTSD 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. 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 (2018). Separate DCs 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 (2018). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2018). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2018). VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2018). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran’s disability rating is 50 percent for his service-connected PTSD. The Veteran claims the rating does not accurately depict the severity of his condition. The General Rating Formula for Mental Disorders provides, in pertinent part: 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....................... 50 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............................. 70 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 name.................... 100 38 C.F.R. § 4.130, DC 9411. When determining the appropriate disability evaluation under the general rating formula, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Because 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. Nevertheless, as 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 under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id at 117-18. The Board notes that the use of GAF scores has been abandoned in the DSM-5 because of, among other reasons, “its conceptual lack of clarity” and “questionable psychometrics in routine practice.” See Diagnostic and Statistical Manual for Mental Disorders, Fifth edition, p. 16 (2013). In this case, as the Veteran’s case is governed by the DSM-5, the Board will not discuss his assigned GAF scores. Further, the Court recently held in Golden v. Shulkin, 29 Vet. App. 221 (2018) that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. In February 2015, the Veteran was afforded a routine follow-up examination to determine the current severity of his service-connected PTSD disability. The Veteran continued to experience nightmares that had increased in the past couple of weeks. He had been missing a lot of work as a result. The Veteran experienced ongoing flashbacks, intrusive thoughts, hyperstartle response, irritability, and depression. Flashbacks were improved since the last examination, but hypervigilance had increased. The examiner indicated that the Veteran’s symptoms resulted in 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. The Veteran had been married for 19 years with a son and daughter. He had a good relationship with his wife and daughter. The Veteran socialized well with people at work and with his family with occasional flare-ups due to his PTSD symptoms. Over the past couple of months, his wife and daughter have gone into treatment to handle their anxiety and depression related to trying not to let him know how much his PTSD symptoms bothered them and worried they have been because of his symptoms. They went into therapy and he went with them. His daughter still was in therapy and appeared to be improving. The Veteran was still employed at the United States Customs Office for the past 12 years. He got along well with several veterans who are employed there. The Veteran had completed his bachelor of science degree in computer science in 2000, but was not able to get a job. The Veteran stated that at times he had difficulty controlling his anger and that he and his wife would sometimes have verbal disputes, but that his wife was working towards trying to understand his PTSD. The Veteran reported avoidance behavior, hypervigilance, exaggerated startle response, concentration problems, sleep disturbances, depressed mood, anxiety, suspiciousness, mild memory loss, impaired abstract thinking, and disturbances of motivation and mood. On examination, the Veteran had a calm mood and congruent affect. There were no apparent hallucinations or delusions. He was fully oriented. There was some impairment of recent memory and abstract thinking. There was no indication of suicidal or homicidal ideation. A July 2015 record included the Veteran’s reports of feeling depressed and unable to work, but that he had used up all of his sick time. He denied suicidal thoughts or frequent nightmares. The Veteran reported feelings of hopelessness about the present or future, but denied suicidal plans or past attempts. In August 2015, the Veteran stated that he had been doing alright for a while until approximately December 2014 when his daughter and wife began to need psychiatric treatment, which resulted in the Veteran’s PTSD symptoms increasing. The Veteran reported that the severity of his symptoms was affecting his ability to perform at his job. He had been missing days, not feeling like doing anything, had gained weight, and had been staying in bed the entire day. The Veteran denied active suicidal thoughts, plan, or intent. In his August 2015 notice of disagreement, the Veteran reported that since the February 2015 VA examination, he had been experiencing increased anxiety, loss of sleep, depression, forgetfulness, loss of time at work, and uncontrollable mood swings. He also was disinterested in many things, with no drive or desire to complete everyday tasks. During the February 2015 examination, the Veteran had forgotten to mention all of the days that he had missed from work due to his mental health symptoms and that at those times he felt tired and spent the entire day in bed. The Veteran had lost wages because he had exhausted his paid leave. Due to the increased symptoms, his treatment provider had changed medication, which had the adverse effect of giving him suicidal thoughts until he stopped the medication. In September 2015, the Veteran reported that his stressors had been resolving and he was feeling better. His position at work would change in about a month and that would remove him from some of the office drama and give him the opportunity to be more physically active. The Veteran had resumed going to the gym at work and had been sleeping better with an improved mood. The Veteran denied hallucinations, delusions, or suicidal or homicidal ideation or attempts. He had good insight, impulse control, and judgment. His memory and attention were intact. In October 2015, the Veteran was doing “relatively okay” with good and bad days with depression and anxiety. He had been trying to apply relaxation methods learned in therapy, had been working out, going for walks, and engaging in recreational activities with his family that he found helpful. The Veteran had been experiencing some stress with co-workers and was supposed to move jobs, but that had not taken place, yet. The Veteran denied active suicidal thoughts, plans, or intent. In January 2016, the Veteran was doing less well, with increased depression and anxiety. The Veteran had to take medical leave from work due to feeling tired and having anxiety episodes at work and was scheduled to return to work in 11 days. He denied active suicidal thoughts, plans, or intent. In March 2016, the Veteran indicated that he was feeling better, with less depression and stress. He had been able to sell his house, which had been a source of significant stress, and buy another place. The Veteran denied active suicidal thoughts, plans, or intent. In May 2016, the Veteran reported feeling even better, with improved mood and decreased anxiety. Sleep had improved, although the Veteran described “crazy dreams” in the last month. The Veteran denied active suicidal thoughts, plans, or intent. In August 2016, the Veteran discussed how a couple of death in the family and among co-workers had made him feel sad and down, with problems with concentration and increased anxiety. He had taken off a week from work, but planned on returning next week. In the meantime, he had been making sure to take his medication and incorporated a healthy lifestyle, like eating healthy and exercising / biking with the family. The Veteran denied active suicidal thoughts, plans, or intent. During a November 2016 VA treatment visit, the Veteran reported that he enjoyed building / playing with trains, which he found relaxing. He had been sleeping better and actually had overslept a couple of days and missed work. He had been exercising, including biking with his family. The Veteran denied active suicidal thoughts, plans, or intent. There was no evidence of extreme anxiety, despondency, or hopelessness. On evaluation, the Veteran had an intact memory and good impulse control. The Veteran was afforded a VA examination in November 2016. The examiner concluded that the Veteran’s PTSD resulted in occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner found the Veteran to be a reliable historian. The Veteran worked as a customs officer and his duties included checking the immigration status of people arriving into the country, but currently he worked mainly in container searches. The Veteran had made contact with a psychiatrist with VA because he had become very depressed after the suicide of a fellow employee and the Veteran had been having suicidal thoughts. In addition, deaths in his family had contributed to his symptoms. At the time of evaluation, the Veteran was alert and fully oriented. His mood was somewhat dysthymic and the Veteran said he struggled from time to time about his experiences in Iraq. The Veteran’s speech patterns and expressed thoughts were unremarkable. The Veteran reported depression that were intermittently severe and with intermittent suicidal thoughts. The Veteran denied any current suicidal or homicidal ideation or intent. He also denied any suicide attempts. There was no evidence of hallucinations, paranoid ideations, or ideas of reference. The Veteran had above average intelligence and had good insight and judgment. Symptoms included, depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in adapting to stressful circumstances including work or a worklike setting, suicidal ideation, hypervigilance, concentration problems, feelings of detachment or estrangement, avoidance behavior, and diminished interest. In his January 2017 substantive appeal, the Veteran stated that his wife had helped in putting together his argument because he had difficulty expressing his feelings effectively in words. The Veteran indicated that his medication allowed him to appear to others to be “physically well” that he had to keep up with the medication, “just to make it through the day as best I can.” The Veteran’s family, friends, and co-workers also were affected by the Veteran’s PTSD, which had resulted in his wife and daughter needing mental health treatment. The Veteran’s PTSD continued to affect his work performance and he had remained unable to work some days, due to his fatigue and lack of interest associated with PTSD. Recently, the Veteran’s supervisor had changed his work status to modified duty until further notice and an internal investigation had been completed. The Veteran’s use of a handgun had been suspended until a medical evaluation could be completed. The Veteran felt hopeless, lost, and increased stress and anxiety as he awaited the outcome of his employment status. In this case, the Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran’s disability in his favor. The Board concludes, however, that the symptoms and manifestations of his PTSD as shown during the VA examinations, treatment records, and in lay statements, do not demonstrate a degree of disability that warrants assignment of a rating greater than 50 percent. See 38 C.F.R. § 4.7. Furthermore, although there are times when the manifestations wax and wane, the symptoms and manifestations shown throughout the Veteran’s treatment are for the most part consistent throughout the pendency of this appeal or, to the extent that they are not consistent, would not warrant a rating greater than 50 percent. For this reason, staged ratings are not applicable. In many of the mental health reports, as well as the VA examinations of record, the Veteran has reported and the examiner has noted depression; anxiety; chronic sleep impairment; disturbances of motivation and mood; impaired impulse control such as unprovoked irritability with periods of violence; recurrent, involuntary, and intrusive distressing memories; avoidance behavior; feelings of detachment; diminished interest; anger outbursts; hypervigilance; exaggerated startle response; and concentration and mild memory problems. The Veteran, however, has almost universally denied suicidal ideation; does not display obsessional rituals which interfere with routine activities; exhibit illogical, obscure, or irrelevant speech; experience near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; report spatial disorientation; or exhibit neglect for personal appearance or hygiene. The Board recognizes that the Veteran has had problems with irritability and arguments with his wife, but these are not accompanied by periods of violence against others. The Board recognizes that the Veteran experienced some suicidal ideation following a change in medication, but when he stopped taking that medication the suicidal ideation did not reoccur. The Veteran otherwise has consistently denied suicidal thoughts, plans, or intent throughout the appellate time period. With respect to the Veteran’s occupational functioning and impairment, throughout the appellate time period he has been working for the United States Customs Service. There have been times when the Veteran had difficulty with work drama and other co-workers, but generally he has reported that he gets along well with his co-workers. The Board recognizes that in January 2017 the Veteran’s ability to carry a firearm was suspended due to his mental health symptoms. That said, there is no indication or suggestion that the Veteran was in danger of losing his job due to his mental health problems and it appears that, at most, his mental health problems would necessitate a change in job duties within the same organization. As such, while the Veteran may have some level of occupational impairment due to his PTSD symptoms, the Board finds that based on the Veteran’s work history he does not have deficiencies in work functioning as contemplated for a 70 percent rating or total occupational impairment as contemplated for a 100 percent rating. In this regard, the Board notes that the 50 percent rating currently assigned is recognition of significant industrial impairment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). As to the Veteran’s social functioning and impairment, the Board recognizes that his PTSD problems have resulted in some level of social impairment, including anger outbursts. That said, he has a generally good relationship with his wife and children. He spends time with them biking and in other physical activities outside the home. The Veteran generally is able to function in a normal manner with others in a social setting outside the home. As such, although the Board acknowledges some degree of social impairment, the Veteran maintains a good relationship with his family and is able to interact with the public in the normal course of daily life. The Board certainly is sympathetic to the social difficulties experienced by the Veteran and any associated effects felt by his family, friends, and others in the community; however, the Veteran does retain the ability to function in both the home and his community. As such, while the Veteran may have significant social impairment due to his PTSD symptoms, the Board finds that based on the lay and medical evidence of record he does not have deficiencies in social functioning as contemplated for a 70 percent rating or total social impairment as contemplated for a 100 percent rating. In summary, the Veteran does not have deficiencies in social or occupational functioning as contemplated for a 70 percent rating or total social and occupational impairment as contemplated for a 100 percent rating. He does have deficiencies in these areas, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 50 percent rating currently assigned. Furthermore, even resolving any reasonable doubt in the Veteran’s favor, the Board finds that he does not meet the requirements for an evaluation greater than the current 50 percent schedular rating. To the extent that the Veteran exhibits any of the criteria for a 70 percent rating, the Board concludes his overall level of disability does not exceed his current 50 percent rating. In determining that a rating in excess of 50 percent is not warranted, the Board has considered the Veteran’s complaints regardless of whether they are listed in the rating criteria, but for the reasons discussed above concludes that the Veteran’s level of social and occupational impairment does not warrant a rating in excess of the currently assigned 50 percent rating. The Board has considered the Veteran’s claim and the lay and medical evidence, but concludes the preponderance of the evidence is against granting a higher rating for PTSD, and thus, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel