Citation Nr: 18160760 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-49 543 DATE: December 27, 2018 ORDER An initial 50 percent disability rating for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The Veteran’s service-connected PTSD manifests in occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial disability 50 percent disability rating for PTSD have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to February 1969, to include service in the Republic of Vietnam. Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an initial disability rating in excess of 30 percent for PTSD The Veteran was granted service connection for PTSD and assigned an initial 30 percent disability rating, effective January 14, 2014, in a May 2014 rating decision. In his August 2014 notice of disagreement the Veteran asserted that a 50 percent disability rating is warranted for his service-connected PTSD. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 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. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed.Cir.2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because “[a]ll nonzero disability levels [in § 4.130] 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 § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio, 713 F.3d at 116-17. The Veteran’s PTSD was evaluated under Diagnostic Code 9411. 38 C.F.R. § 4.130. Under Diagnostic Code 9411, 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 warranted 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 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 worklike 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; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The Veteran’s PTSD has been evaluated in VA examinations conducted in April 2014, March 2016, and March 2017. At the Veteran’s April 2014 VA PTSD examination, the VA examiner noted that the Veteran exhibited symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, and suicidal ideation. The VA examiner further noted that the Veteran was cooperative with the examination. He has good eye was fair. His speech was within normal limits, and he was goal-oriented when answering questions. The Veteran described his relationships with his siblings, his children, and his wife of over 40 years as “real good.” He Finally, the VA examiner noted that the Veteran’s PTSD manifested in occupational and social impairment due to transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication, which is contemplated by the 10 percent criteria. In August 2014, the Veteran submitted a notice of disagreement (NOD) following the assignment of a 30 percent disability rating for PTSD. The NOD contained the following Veteran statement regarding his PTSD symptoms: I am having trouble with day to day activities. I find it extremely difficult to express myself verbally, I suffer panic attacks where my [stomach] goes into my throat, I get short of breath, even experience chest pains several times a day, I can’t sleep at night because of the re-occurrent dreams. In my claim[,] I detailed stressful events from Vietnam and I dream of this stuff every night. I have resorted to the use of alcohol to calm me down which helps me sleep at night. On the issues of memory, short and long term. I have real problems with this. Then[,] as a result of my inability to remember makes it very difficult for me to complete even simple tasks. I keep inside my house and avoid involvement with other people as I have trouble controlling my emotions and try to avoid embarrassment. As noted above, the Veteran is competent to report symptoms observable to a layperson. See Davidson, 581 F.3d 1313. The Veteran’s PTSD was next evaluated for severity in a March 2016 VA PTSD examination. Upon examination, the VA examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events. The VA examiner further noted that the Veteran exhibited symptoms of severe depression, low concentration, increased guilt, and loss of interest. The Veteran had moderate eye contact, clear speech, and goal-oriented and logic answers. The Veteran stated that he had occasional suicidal ideation in the past, with the most recent occurrence happening approximately 10 months prior to the examination. He denied suicidal and homicidal ideation at the time of the examination. He reported that the quality of his marital relationship was “not great” but attributed this to erectile dysfunction over the previous six years. He saw his children regularly and interacted with family friends who lived with him. He also helped his neighbors with snow blowing when needed. Finally, the VA examiner noted that the Veteran’s PTSD manifested 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, which is contemplated by the 30 percent criteria. At the Veteran’s most recent VA examination in March 2017, the Veteran’s PTSD manifested in symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintain effective work and social relationships, and difficulty adapting to stress full circumstances, including work or a worklike setting. The VA examiner also noted that the Veteran was socially appropriate and without psychotic issues. The Veteran “would be able to present well socially” and “would be able to engage appropriately with supervisors and coworkers.” He had “mild” cognitive impairment that the examiner stated was not related to his PTSD. Finally, the VA examiner noted 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, which is contemplated by the 30 percent criteria. Private and VA mental treatment records note from the Veteran is maintains fair to good eye contact, has normal with occasionally blunted affect, normal rate of speech, intact cognition, linear and logical thinking, and did not endorse hallucinations or homicidal ideation. However, in November 2015, a mental health treatment note indicates that the Veteran did endorse suicidal ideation without intent. The Veteran’ most recent VA treatment record in May 2017 reports that the Veteran is still being treated for depression. The Veteran consistently has chronic sleep impairment with nightmares, and some memory loss. His judgment and insight are consistently described as “good.” The Veteran is alert and oriented and exhibits euthymic mood, congruent affect, though content that is appropriate to the topic, no evidence of psychosis, and no suicidal or homicidal ideation. Based on the above discussed evidence the Board finds that the Veteran’s PTSD manifests in occupational and social impairment with reduced reliability and productivity. The Board finds that a disability rating in excess of 50 percent is not warranted because the probative evidence of record does not establish occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. The Veteran has depression and anxiety. The 70 percent criteria contemplates a deficiency in “mood” among other areas. However, this not mean his PTSD rises to the 70 percent level. Indeed, the 30 percent, 50 percent, and 70 percent criteria each contemplate some form of mood impairment. The Board, instead, must look to the frequency, severity, and duration of the impairment. Id. Here, the Veteran’s depressed mood and anxiety are expressly contemplated by the 30 percent criteria, or at best, the 50 percent criteria, which contemplates “disturbances” in mood. 38 C.F.R. § 4.130. The Veteran’s depression and anxiety are not more accurately described as near-continuous and the record does not show that his mood disturbance interferes with his ability to function independently. The Veteran is adequately compensated for that impairment. The record consistently showed that he maintained good relationships with his spouse, siblings, children, and grandchildren. He helped his neighbors with snow blowing and had family friends living in his basement. He had good relationships with his wife’s siblings. He had “minimal” friendships. One VA examiner noted that he would be able to present well socially. The record does not demonstrate symptoms severe enough to be more accurately described as an “inability” to establish and maintain effective relationships, which is contemplated by the 70 percent criteria. His insight and judgement consistently good throughout the appeal period. The March 2017 VA examiner noted that PTSD would not preclude participation in “typical employments,” and that he could remain on pace with tasks that were regimented, routine, and rote. He would be able to work with a small group of people or by himself, but working with the public would be “problematic.” The examiner noted that the Veteran would be able to engage with coworkers. He reported retiring from his job because of physical problems with his hands. He described relationships with his coworkers as “adequate,” but that he was not friends with them. The record showed that he would have “difficulty” establishing work relationships, which is addressed by the 50 percent criteria, as opposed to the more severe “inability” which is contemplated by the 70 percent criteria. At the April 2014 examination, the Veteran reported having past suicidal ideation without intent to complete or plan. He reported it in November 2015. At his March 2016 examination, he reported having it occasionally, with the last occurrence being 10 months prior to the examination. At his March 2017 examination, he stated he had it years ago but “none recently.” He denied having current suicidal ideation at several other VA treatment appointments. Regarding the Veteran’s thoughts of suicide, passive ideation without intent or plan constitutes suicidal ideation for the purposes of the 70 percent criteria. Active ideation is not required. Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). In this case, the Veteran’s suicidal ideation happened occasionally, with periods of many months to years in between occurrences. He had a significant instance of ideation, which he reported in November 2015. He stated that for the length of one morning, stress from attempting to sell property became overwhelming and he had thoughts of suicide. Occasional ideation with one episode lasting for one morning over an appeal period that is many years long is not of the frequency, severity, or duration needed to cause or contribute to occupational and social impairment with deficiencies in most areas. For these reasons, the Board grants an initial 50 percent disability rating for PTSD. However, his symptoms are not of the frequency, severity, or duration to be more closely described by the 70 percent criteria. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel