Citation Nr: 18160722 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 15-18 723 DATE: December 27, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s PTSD was productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication; it did not more nearly 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). CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1974 to February 1978. He served honorably in the U.S. Army, including service in the Republic of Korea. The Board thanks the Veteran for his service to our country. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the April 2013 Rating Decision of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to service connection for PTSD and assigned an initial 10 percent disability rating. 1. Entitlement to an increased initial rating for PTSD is denied. The Veteran seeks an initial disability rating in excess of 10 percent for PTSD. The Board finds that a rating in excess of 10 percent is not warranted. Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran’s entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and 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, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining whether a claimed benefit is warranted, VA must determine 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. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Lay evidence may be competent to address any matter not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disabilities prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal. PTSD is rated by applying the criteria in 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. The VA Schedule rating formula for mental disorders reads in pertinent part as follows: 100 percent rating (the maximum schedular rating) - 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. 70 percent - 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). 50 percent - 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. 30 percent - 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, and mild memory loss (such as forgetting names, directions, recent events). 10 percent - Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign a rating 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). When determining the appropriate disability rating 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. Mauerhan v. Principi, 16 Vet. App. 436, 441 (2002). Because the use of the term “such symptoms as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, 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 v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In this case, at a December 2010 initial mental health appointment, the Veteran reported past psychiatric history of nightmares and flashbacks following a 2007 automobile accident. The treating psychiatrist noted that the Veteran’s medical records indicated that the Veteran had responded well to his medication. The Veteran reported that he had stopped taking the medication because of improvement. At the appointment the psychiatrist noted that the Veteran’s mood was anxious and depressed and his affect was restricted to mood. The Veteran reported impaired sleep and becoming distracted during the day by “voices of the dead” and mental images. The Veteran reported being unable to shut out thoughts of death. The psychiatrist’s assessment noted that thoughts and dreams centered around death had reemerged over the past year, and indicated that the Veteran would be restarted on his previous medical regimen as it appeared to have been effective in the past per the Veteran’s treatment records. At a January 2011 follow-up appointment, the Veteran reported that his medication had helped improve his sleep and that his nightmares had decreased. He reported improvement in his mood and level of function. The treating psychiatrist noted that the Veteran’s mood was neutral and his affect was constricted. The psychiatrist also noted partial medication compliance. The psychiatrist assessed that the Veteran appeared improved from the previous visit and could receive further benefit from taking his medication daily. In February 2011, the Veteran submitted correspondence stating that medication and therapy have been helping his condition, although it was not cured. The Veteran stated that he was continuing to have nightmares. In a March 2011 examination report, the examiner noted that the Veteran never had any inpatient psychological treatment or contemporaneous or historical suicidal ideations. The examiner noted that the Veteran never had auditory or visual hallucinations, except for a time when he heard voices when he was dreaming, and when, as a child, he saw things that were not there. The Veteran endorsed depressed mood almost every day and frequent insomnia. He reported taking medication to help him sleep and having difficulty falling and staying asleep. He reported having nightmares, the most recent being a month prior, and waking up hollering. He reported thinking of death daily. He reported working intensely at not getting angry. At a March 2011 appointment, the Veteran reported having one nightmare since his last visit, while he was hospitalized for complications following a colonoscopy. He reported his mood as progressing in a good direction. The treating psychiatrist noted that the Veteran’s mood was neutral and his affect was constricted. The psychiatrist also noted fair medication compliance. The psychiatrist assessed that while the Veteran reported overall symptom improvements, he still had lingering symptoms. At a November 2011 appointment, the Veteran reported running out of medication approximately two months prior and experiencing more bad dreams, difficulty sleeping, and worries about sleep. He denied symptoms of depression but reported having to force himself to motivate. The treating psychiatrist noted that the Veteran’s mood was dysphoric and his affect was full. The psychiatrist also noted that the Veteran’s medication compliance was good until he ran out of medication. At a February 2012 appointment, the Veteran reported that his medication helped him sleep but he had trouble staying asleep, sleeping only four hours sometimes. He reported feeling like his depression was under control and that his medication helped with his nightmares. The treating psychiatrist noted that the Veteran’s mood was euthymic and his affect was full. In a March 2013 examination report, the examiner noted that the Veteran was cooperative and oriented and his speech was spontaneous. The examiner noted that the Veteran’s recent and remote memory was grossly intact, but was not formally examined. The examiner assessed that the Veteran’s mood was mildly depressed and his affect was mood congruent, and while the Veteran felt anxiety internally, he did not show it externally during the interview. The examiner did not denote any PTSD or depression symptoms except for nightmares. The examiner concluded that the Veteran’s depression was controlled by his medications and opined that the Veteran’s PTSD was productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. At an August 2013 appointment the Veteran reported that his depression was just mild, and that he was pleased with his medications the way they were. He reported taking Trazodone only when he needed it. The treating psychiatrist noted that the Veteran’s mood was okay and his affect was bright, that his medication compliance with Sertraline was good, and his Trazodone was on an as-needed basis. The psychiatrist assessed that the Veteran was doing well on his medication and had been maintaining improved sleep hygiene. Notes from January and May 2014 convey similar assessments. At a November 2014 appointment the Veteran reported attending a friend’s funeral and having related dreams; the treating psychiatrist suggested that the Veteran take Trazodone if he had more nightmares. The psychiatrist noted that the Veteran’s mood was stable and his affect was bright, and that his medication compliance was good with Sertraline and that his Trazodone was not contemporaneously needed. During the period on appeal the treatment providers consistently noted that the Veteran’s grooming and hygiene was fair or good, his thought process was linear, his cognition and memory appeared intact, and his insight and judgment were fair. During the period on appeal the Veteran consistently denied audio or visual hallucinations and suicidal or homicidal ideations. The Board finds that the preponderance of evidence is against finding that the frequency, severity, and duration of the Veteran’s symptoms more nearly approximated 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). Instead, the evidence reflects that the Veteran’s symptoms equated with occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. The most probative evidence, including the numerous clinical records and the VA examination report, reflect that the Veteran’s symptoms were controlled by continuous medication. Symptoms of depressed mood, anxiety, and impaired sleep generally arose when the Veteran stopped taking medication or did not fully comply with his daily medication regimen. Even with medication, at most, his depression was described as mild, and the only other symptom noted during the VA examination was nightmares. With respect to his nightmares, at times during the appeal he only reported one nightmare a month which does not rise to the level of frequency, severity, and duration so as to more nearly approximate a higher, 30 percent, rating. Further, the record does not reflect symptomatology that would cause occupational and social impairment at a 50 percent, 70 percent, or 100 percent disabling level. As the Veteran's PTSD symptoms improve on medication, the ameliorative effects of medication must be considered where, as here, such effects are explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). The record reflects that when the Veteran is fully compliant with his medication, his sleep hygiene improves; his mood is stable, okay, or euthymic; and his affect is bright. Generally, only periods of significant stress, such as a friend’s funeral or when he was hospitalized for complications following a colonoscopy, result in nightmares. In this regard, as discussed above, the Veteran's symptoms, with medication, do not reach the level of severity and impairment contemplated by rating higher than 10 percent. Accordingly, entitlement to an initial rating in excess of 10 percent is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to a higher rating. 38 U.S.C. § 5107. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Vashaw, Associate Counsel