Citation Nr: 1806440 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-29 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with major depressive disorder, on or after April 6, 2010. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD R. Gandhi, Associate Counsel INTRODUCTION The Veteran served honorably on active duty from October 1965 to October 1968 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran requested a Board video hearing before a Veterans Law Judge. However, in July 2017 correspondence, the Veteran canceled his hearing request. As he has not submitted any additional requests for another hearing, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2017). FINDING OF FACT During the appeal period, the Veteran's service-connected PTSD with major depressive disorder more nearly approximates occupational and social impairment with deficiencies in most areas due to psychiatric symptoms; but it has not resulted in total occupational and social impairment. CONCLUSION OF LAW The criteria for an evaluation of 70 percent, but no higher, for PTSD with major depressive disorder have been approximated from April 6, 2010. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9434-9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In this case, on April 6, 2010, VA received the Veteran's increased-rating claim for his service-connected PTSD with major depressive disorder, rated at 50 percent pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434-9411. When evaluating a mental disorder, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. 38 C.F.R. § 4.126. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted when 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 often 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 when the psychiatric disorder results in 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. A 100 percent rating is warranted when the psychiatric disorder results in 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 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 the claimant's social and work situation. Id. In April 2010 correspondence, the Veteran noted that he was becoming increasingly irritated with his activities of daily living, work, and other people. He also noted his difficulties with co-workers. In July 2010, the Veteran underwent a VA PTSD examination. The examiner found that the Veteran's PTSD resulted in disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; chronic sleep impairment; depression; and anxiety. The examiner noted that Veteran had no homicidal or suicidal thoughts, no obsessive rituals, no problems with activities of daily living, his impulse control was good, and that he was able to maintain his personal hygiene. Socially, it was noted that the Veteran's marriage ended in divorce due to irritability and social withdrawal, and that he was estranged from his child. Occupationally, it was noted that Veteran retired to avoid possible violence with a newly assigned coworker. The examiner found that the Veteran's PTSD resulted in reduced reliability and productivity. An August 2010 treatment record noted that the Veteran's PTSD has worsened after he had sustained injuries in a burning accident - which reminded him of Vietnam. A May 2011 treatment record noted that the Veteran was having difficulty in adapting to a stressful situation involving his son. The counselor who wrote the entry also noted that he did not consider the Veteran to be a risk to himself, nor, had he ever in the past. September 2011 correspondence from the Veteran's friends noted that the Veteran avoided large crowds and was estranged from his children. An October 2011 treatment record noted that the Veteran was isolating 100 percent of the time. A March 2012 treatment record noted that the Veteran continued to isolate and had not spoken to his son in over a year. In October 2012 correspondence, the Veteran noted that he liked being alone and had no relationship with his daughter and that his son had stopped talking to him. He also wrote that he had no good friends. A November 2012 treatment record noted that the Veteran had reconnected with his daughter and loved his grandchildren. The Veteran still continued to have no relationship with his son. In March 2017, the Veteran underwent a VA PTSD examination. The examiner found that the Veteran's PTSD resulted in depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and an intermittent inability to perform activities of daily living (ADLs), including maintenance of minimal personal hygiene. The examiner noted that Veteran was punctual, casually dressed and cooperative. His thought processes were logical, organized and coherent and thought content was relevant and non-delusional. He reported no suicidal, homicidal or paranoid ideation. The Veteran was able to communicate well and demonstrated no problems with comprehension and tracking. The examiner noted that there were transient lapses of concentration and focus. The Veteran's affect was described as euthymic with no overt affective distress. It was noted that the Veteran was capable of managing his financial affairs. Socially, it was noted that the Veteran had two friends. Occupationally, it was noted that the Veteran remained retired. The examiner found that the Veteran's PTSD resulted 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. Affording the Veteran the benefit of the doubt, the Board finds that the VA examinations and treatment records demonstrate that the Veteran's overall disability picture is consistent with a 70 percent rating throughout the appeal period. Throughout the entire period on appeal, the Veteran has maintained a history of symptoms that predominantly includes irritability, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The Board finds that these symptoms and the social and occupational effects related thereto support a 70 percent evaluation for the period on appeal. See Vazquez-Claudio, 713 F.3d at 118. More specifically, the record reflects the Veteran's social isolation, his estrangement from his children at times, irritability that led to his retirement and divorce, a depressed mood, anxiety, chronic sleep impairment, mild memory loss, and flattened affect. The Veteran was noted to have retired from his job rather than began working with a new coworker, whom he was afraid of getting into a violent situation with, which would be akin to difficulty in adapting to stressful work circumstances and impaired impulse control. The severity of the symptoms presented are contemplated by a 70 percent evaluation. Although the Veteran does not endorse all of the symptoms listed in the criteria for a 70 percent rating, such as neglect of personal appearance, spatial disorientation, and obsessional rituals, under Mauerhan, the lack of such symptomatology is not fatal to the Veteran's claim for a higher rating. The frequency, severity, and duration of the PTSD symptoms such as significant occupational impairment and social isolation more closely approximate the criteria for a 70 percent evaluation. The Board finds, however, that the Veteran is not entitled to a higher, 100 percent rating during the appeal period, as total occupational and social impairment is not more nearly approximated. Notably, the Veteran has maintained some social relationships, including a relationship with his daughter and grandchildren, and at the time of the 2017 examination, he reported two friends. He was also fully oriented throughout the relevant time period. While there is evidence of memory loss, examiners have not indicated that the Veteran has memory loss of names of close relatives, his own occupation, or his own name. Additionally, examiners have noted that the Veteran did not present with any suicidal or homicidal ideation. While the March 2017 examiner indicated that the Veteran was experiencing intermittent inability to perform ADLs, including maintenance of minimal personal hygiene, the examiner also noted that Veteran was punctual, casually dressed and cooperative during his examination and that the Veteran was also capable of managing his financial affairs. The July 2010 examiner also found that the Veteran had no problems with ADLs and could maintain his personal hygiene. Overall, the Veteran has not demonstrated symptoms consistent with or approximating the general level of impairment warranting a 100 percent evaluation or akin to the symptoms as found in the rating criteria. Mauerhan, supra. Therefore, the Board finds that the Veteran's PTSD with major depressive disorder warrants a 70 percent rating for the entire appeal period. See 38 C.F.R. § 4.130, Diagnostic Code 9434-9411. (CONTINUED ON NEXT PAGE) ORDER Subject to the law and regulations governing the award of monetary benefits, an increased rating of 70 percent for PTSD with major depressive disorder, but no higher, is granted for the entire period on appeal. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs