Citation Nr: 1806374 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-30 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1967 to October 1969. During his period of service, the Veteran earned the Purple Heart, Combat Infantry Badge, National Defense Service Medal, Bronze Star Medal, Vietnam Service Medal, and Vietnam Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which, in pertinent part, granted service connection for PTSD, and assigned a 50 percent rating, effective from April 7, 2009. FINDING OF FACT For the entire period on appeal, the Veteran's service-connected PTSD was manifested by no more than occupational and social impairment with reduced reliability and productivity without deficiencies in most areas or total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for service-connected PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted where there is 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. A 70 percent rating is warranted where there is 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. A 100 percent rating is warranted where 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. The use of the term "such as" in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "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." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently assigned a 50 percent rating for his service-connected PTSD. He contends that a higher rating is warranted. A private opinion was submitted by Dr. J. L. in March 2009. The Veteran reported that he cried more, felt more restless or wound up, was less interested in other people or things, had less energy, and got tired or fatigued more easily than usual. The physician opined that the Veteran had little ongoing depression, but instead had episodes. The physician noted that the Veteran experienced flashbacks and dreams, as well as elements of panic with physical and psychological symptoms and dissociation to flashbacks. Dr. J. L. further noted that the Veteran also experienced recurrent and intrusive memories, intense psychological and physiological reactions when recalling his experiences in Vietnam, avoidance, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, restricted range of affect, sense of a foreshortened future, difficulty falling or staying asleep, irritability, outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. The physician observed that the Veteran was alert and cooperative. His affect was pleasant to anxious and tearful. He had no evidence of formal thought or thought content disorder, such as delusions or hallucinations. He was also oriented, had a good fund of general knowledge, and his intellect was normal. The Veteran appeared for a VA PTSD examination in July 2009. The Veteran reported symptoms of re-experiencing, intrusive thoughts, and physiological distress when recalling his experiences in Vietnam. The Veteran further reported symptoms of avoidance, inability to recall important aspects of his Vietnam experience, significant restricted range of affect, sense of foreshortened future, irritability, concentration difficulties, and hypervigilance. He denied outbursts of anger, as he stated that his spirituality had helped in this area. He also denied any current exaggerated startle response; however, he reported a history of being on edge when he used to see helicopters or fireworks. The examiner noted that the Veteran's symptoms appeared to negatively affect his ability to develop and maintain social relationships, as the Veteran expressed that he had a strained relationship with some of his children. At the time of his examination, the Veteran stated that he was married to this third wife. His symptoms also affected his occupational functioning, as the Veteran's previous job was modified to allow for minimal human interaction. The examiner observed that the Veteran's mood was initially euthymic and then became somber while discussing his time in Vietnam. His affect became tearful and he apologized several times for evidencing tears. His thought processes were goal-directed and clear. The Veteran's speech was articulate, clear, and within normal limits for volume, rate, rhythm, and prosody. His concentration, reasoning skills, and memory were intact. His attention and impulse control appeared within normal limits. The Veteran's judgment and insight were good. The Veteran appeared for an evaluation in January 2010. The examiner identified symptoms of re-experiencing, recurrent distressing dreams, and physiological distress when recalling his experiences in Vietnam. The examiner also identified symptoms of avoidance, inability to recall important aspects of his Vietnam experience, markedly diminished interest or participation in significant activities, sense of a foreshortened future, difficulty falling or staying asleep, hypervigilance, and exaggerated startle response. The examiner further noted that the Veteran's symptoms caused clinically significant distress or impairment in his social, occupational, or other important areas of functioning. The examiner observed that the Veteran was cooperative, alert, intelligent, and articulate. The Veteran was oriented to person, place, and time. His memory was preserved and his concentration, judgment, and insight were good. The Veteran appeared for a VA PTSD consultation in April 2010. The Veteran reported symptoms of re-experiencing, such as intrusive thoughts, nightmares, and intense psychological and physiological reactions when recalling his experiences in Vietnam. He further reported symptoms of avoidance, such as dissociation, detachment, emotional numbing, sleep disturbance, irritability, lack of concentration, hypervigilance, and exaggerated startle response. The examiner observed that the Veteran was fully oriented. He was cooperative, friendly, and verbose. His thought process was coherent and his thought content was logical and goal-oriented. His mood and affect were good. A private opinion was submitted by Dr. J. L. in June 2010. The physician stated the Veteran's experiences of Vietnam were constantly playing in his thoughts and influencing his behavior. Dr. J. L. noted symptoms such as flattened affect, frequent panic attacks, difficulty in understanding complex commands, impaired short and long-term memory, impaired judgment, disturbances of motivation and mood, and difficulty maintaining effective work and social relationships. The Veteran appeared for a VA PTSD examination in August 2016. The examiner stated that the Veteran had 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 reported ongoing emotional reactivity to various trauma triggers. He further reported that he could anticipate being troubled by certain trauma triggers; however, he sometimes found himself blindsided by his emotional reactions. While he maintained contact with fellow Veterans and regularly attended reunions, he avoided certain triggers that would have a negative emotional impact on him, such as increased irritability. The Veteran also endorsed some posttraumatic amnesia and continued to report survivor guilt. However, the Veteran reported that he mad efforts to live a full and fulfilling life in order to honor the men who were lost in Vietnam. The examiner further noted symptoms including feelings of detachment or estrangement from others, irritable behavior and angry outbursts, hypervigilance, anxiety, suspiciousness, and disturbances of motivation and mood. The medical evidence also includes VA treatment records, which document the Veteran's participation in PTSD processing groups. In addition to the medical evidence, the Veteran has provided written statements, as well as a statement from his wife, regarding his PTSD symptoms. This evidence is consistent with the VA examinations of record. Upon review of the medical and lay evidence of record, the Board finds that the evidence does not reflect symptoms that would meet the criteria for a rating in excess of 50 percent for any period of time during the pendency of the claim. Specifically, the treatment records and VA examination reports were not indicative of occupational and social impairment that approximate the criteria for a 70 percent rating or total occupational and social impairment that approximate the criteria for a 100 percent rating. While the evidence of record demonstrates impairment in occupational and social functioning, it does not show such impairment with deficiencies in most areas to warrant an increased rating of 70 percent. Indeed, although the Veteran's symptoms have impacted his familial and social relationships, he did report that his wife, daughters, and grandchildren were important to him. He also works closely with two pastors and other staff members at his place of employment. The Veteran also attends reunions with other Vietnam Veterans and will occasionally go fishing with some of his coworkers. There is no evidence of deficiencies in most areas, including family relations, judgment, or thinking. The social and occupational impairment reported by the Veteran and noted in the private and VA examination reports is covered by his current 50 percent evaluation. Without evidence of more serious social and occupational impairment with deficiencies in most areas or total occupational and social impairment, a higher rating of 70 or 100 percent is not warranted. The Board notes that there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the currently assigned 50 percent disability rating throughout the appeal period; thus, assignment of staged ratings is not warranted. See Fenderson, supra. Accordingly, the Board finds that the claim of entitlement to an initial disability rating in excess of 50 percent for PTSD must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to an initial disability rating in excess of 50 percent for PTSD is denied. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs