Citation Nr: 19101080 Decision Date: 01/04/19 Archive Date: 01/04/19 DOCKET NO. 16-48 181 DATE: January 4, 2019 ORDER A rating in excess of 50 percent prior to July 22, 2016 for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT Prior to July 22, 2016, the Veteran’s PTSD did not more nearly reflect occupational and social impairment with deficiencies in most areas due to the severity, frequency, and duration of psychiatric symptoms. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 50 percent for PTSD prior to July 22, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 2002 to October 2006. Increased Ratings Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Entitlement to a rating in excess of 50 percent for PTSD prior to July 22, 2016. The Veteran contends that a 70 percent rating is warranted prior to July 22, 2016. Specifically, he argues that his irritability and angry outburst caused problems with his family, neighbors, and coworkers; and that he has anhedonia, poor motivation, and suicidal ideations. It is noted that the VA Regional Office granted a 70 percent rating for PTSD from July 22, 2016 and that the Veteran, in his VA Form 9 of September 2016, argued that a 70 percent rating was warranted prior to July 22, 2016. He did not argue that VA erred in assigning a 70 percent rating for PTSD, but rather that the effective date of the award was wrong. As such, the Board has construed the appeal as a claim for increase for the period prior to July 22, 3016. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms, both listed and unlisted, caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher prior to July 22, 2016. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. The Veteran’s PTSD is rated under the General Rating Formula for Mental Disorders, found at 38 C.F.R. § 4.130. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. An August 2014 VA PTSD examination reflects that the Veteran was married, but had some marital conflict that was not physical. He reported having few friends, socializing infrequently. His free time was spent with his children or doing recreational activities, such as, hiking. He worked full-time and stated his employment was going well. He described himself as a reliable employee and denied needing to take excessive sick leave. He also reported that he generally got along well with his coworker, although there was occasionally some conflict and he described a recent altercation involving a neighbor that led to disciplinary action at work. He did not report any significant impairment performing activities of daily living, other than reporting some feelings of road rage when driving. He was not currently under treatment and took no medication; he stated that he did not find his psychiatric care helpful. He reported symptoms of hypervigilance, irritability, depressed mood, anhedonia, and sleep disturbances. He denied any history of suicidal behavior or psychosis. The examiner characterized the Veteran’s PTSD as moderate and concluded that it would result 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 routine behavior, self-care, and conversation normal). VA outpatient treatment record for the relevant period reflect complaints of chronic sleep impairment, anxiety, irritability, depressed mood, and poor motivation. However, they do not show reports of suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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; or neglect of personal appearance and hygiene. In his February 2015 notice of disagreement, the Veteran claimed that he met the criteria for a 70 percent disability evaluation, asserting that he had minimized his symptoms to VA treatment providers and the August 2014 VA examiner because he was afraid that reporting their full severity, including suicidal ideations, would impact his career as a law enforcement officer. He complained of hypervigilance and difficulty managing angry outbursts. He claimed that he neglected his personal hygiene and no longer participated in activities he previously enjoyed. He described feeling run down, drained, and “uninterested in life in general.” He also reported difficulty establishing and maintaining personal relationships and stated that he spends most of his time alone. A July 2016 VA examination report reflects that the Veteran remained married, but described his relationship as “strained.” He reported a good relationship with his three young children and his parents. He claimed that he did not have any hobbies and no longer enjoyed activities he had once participated in. He also reported that he had just moved and had difficulty making friends. He continued to remain employed as a law enforcement officer and did not report any changes to his employment, conflict with colleagues, or disciplinary problems. The Veteran reported some passive suicidal ideations, but denied any intent to act on them. He denied any manic episodes, audio or visual hallucinations, or hospitalizations. The Veteran's mood appeared mildly anxious and he displayed limited range of affect. However, he was oriented to time, place, and person. He did not display any evidence of psychosis. His thought processes were logical and sequential. His speech was coherent, fluent, and goal-directed. His self-care and hygiene appeared good. He was competent to manage his benefits. The examiner concluded that the Veteran's PTSD would result 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 routine behavior, self-care, and conversation normal). The Board finds that a preponderance of the evidence shows that the Veteran's PTSD more closely approximated the criteria for a 50 percent disability evaluation prior to July 22, 2016. The Board has considered the Veteran's statements in his February 2015 notice of disagreement and September 2016 substantive appeal that his disability is worse than reflected in VA outpatient treatment records and examination reports, due to symptoms such as suicidal ideation and depression that results in poor hygiene and social isolation. The Veteran's explanation for this discrepancy, that he feared that revealing the full extent of his disability would negatively impact his employment, is not inherently implausible. The record reflects that the Veteran is employed as an armed federal law enforcement officer and it is not unreasonable that he feared that any admission that he was potentially a danger to himself or others might negatively impact his employment by calling into question his fitness to serve or carry a firearm. However, the Board also notes that the timing of the Veteran's contentions is somewhat suspect. It is only after the RO issued a rating decision explaining in detail the criteria for a higher disability evaluation and why the Veteran did not meet that criteria that the Veteran made his assertion that his PTSD was more severe by directly quoting from the rating schedule to make his case, in a manner that appears calculated. Unfortunately, regardless of whether the Veteran's statements to VA or his reports to his treatment providers is the more accurate reflection of his disability, the inconsistencies between his varying accounts, as well as his own admission that he has not been completely candid in reports of his symptoms, undermine his credibility. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). In evaluating the extent of the Veteran's functional impairment due to his PTSD, the Board notes that the Veteran was gainfully employed for the entire period on appeal. At his August 2014 VA examination, he described himself as a reliable employee and denied an excessive use of sick days, an account that he does not appear to contradict in his notice of disagreement or substantive appeal. He reported only one instance of disciplinary action, which apparently stemmed from an altercation with a neighbor, rather than any conflict or infraction at his place of employment, and which, in the absence of any additional reports of disciplinary problems, appears to be an isolated incident. The Veteran also did not allege that he failed to receive any assignment or promotion due to his symptoms. At the August 2014 VA examination, he reported that he generally got along with his coworkers. The Veteran appeared to walk back this last assertion in later statements, contending that he has difficulty working with others, but he does not detail any specific instances of conflict with coworkers. The preponderance of the evidence appears to show that the overall impact of the Veteran's PTSD on his employment was limited. Regarding the Veteran’s social functioning, the Veteran has contended that his irritability, angry outbursts, and emotional detachment have affected his relationships. He has recounted marital conflict and claims to have few, if any friends. However, the Veteran has also described a generally positive relationship with his children and parents. Further, despite his characterization of his marriage as “strained,” the Veteran has remained married throughout the period on appeal. To the extent that the Veteran has attributed the failure of a previous marriage in 2006 to his PTSD, the Board notes that only the Veteran's functioning during the pendency of this appeal is considered when determining the appropriate disability evaluation. The Veteran has been considered competent to manage his financial affairs during the relevant period. There is no evidence of any impaired thought processes or psychosis. Additionally, despite his reports of suicidal ideation, there is no evidence that the Veteran has ever been considered a danger to himself or others or that his symptoms were so severe as to require hospitalization. Indeed, the Veteran's overall level of functioning appears to be fairly high in many respects. The Board certainly does not discount that the Veteran experiences real distress due to symptoms of depression and anxiety or that his PTSD sometimes affects his work, relationships, and activities of daily living. However, despite his PTSD, he has successfully maintained full time employment, as well as relationships with close family members, during the pendency of the appeal, a level of functioning that appears somewhat at odds with the Veteran's own characterization of his disability. In evaluating the totality of the evidence, the Veteran's PTSD most closely approximates the criteria for a 50 percent evaluation prior to July 22, 2016. That is, his condition is productive of occupational and social impairment with reduced reliability and productivity due to his symptoms. The preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 70 percent rating or higher prior to July 22, 2016. Accordingly, the claim is denied. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. D. Anderson, Counsel