Citation Nr: 19149489 Decision Date: 06/25/19 Archive Date: 06/25/19 DOCKET NO. 18-30 149 DATE: June 25, 2019 ORDER Entitlement to an initial rating higher than 70 percent for post-traumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s PTSD does not cause total occupational and social impairment because the Veteran maintains employment and contact with his children despite his symptoms. CONCLUSION OF LAW The criteria for entitlement to an initial rating higher than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the U.S. Army from February 1969 to October 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a December 2017 rating decision, the Veteran was granted service connection for PTSD and assigned a 50 percent disability rating, effective October 2, 2017 (the date the claim was submitted). He submitted a notice of disagreement (NOD) in February 2018 appealing his initial disability rating and asking for a 100 percent disability rating. In a May 2018 rating decision, the Veteran’s disability rating for PTSD was increased to 70 percent, effective October 2, 2017. Because the Veteran appealed the initial rating decision granting service connection and assigning a disability rating, the December 2017 decision did not become final, and the period on appeal is the initial rating period from October 2, 2017. 1. An initial rating higher than 70 percent for PTSD is not warranted. Legal criteria for PTSD disability rating Disability ratings are assigned by comparing an individual Veteran’s symptoms to those listed in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. This is intended to represent the average impairment of earning capacity resulting from a disability. Id. Service-connected psychiatric disabilities are rated according to the General Rating Formula for Mental Disorders. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Id. A 100 percent rating is warranted for total occupational and social impairment. Id. [The Board notes that the symptoms listed in VA’s general rating formula for mental disorders are merely examples of the type and degree of the symptoms (or their effects) that would justify a particular rating and, therefore, to avoid a “checklist” approach, the Board has not included a list of those examples here. See Mauerhan v. Principi, 16 Vet. App. 436 (2002).] When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The evaluation must be based on all relevant evidence of record and not just an assessment on the day of an examination. Id. Social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment; it must include occupational impairment. 38 C.F.R. § 4.126(b). When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture “more nearly approximates” the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Factual Background The Veteran is claiming an increased initial rating for his service-connected PTSD. The Veteran is currently rated at 70 percent, effective October 2, 2017. See May 2018 rating decision. In November 2017, VA provided an examination for the Veteran concerning his PTSD. The Veteran reported that his marriage was “okay” and rated his parenting a five out of ten. He reported that he has worked at his current job for 26 years and when he was not working, he occupied his time around the house. He also reported going to church once a week and enjoying it. The examiner noted that the Veteran had suicidal ideation one to two times per day, but no homicidal ideation. The examiner also noted that the Veteran was on time and appropriately dressed. His speech, concentration, gait, orientation, knowledge were all normal and his mood was euthymic. Under the criteria for PTSD, the examiner indicated that the Veteran experienced the following: recurrent distressing memories and dreams related to trauma; flashbacks; avoidance of distressing memories, thoughts, or feelings related to trauma; persistent negative emotional state; markedly diminished interest or participation in significant activities; irritable behavior and angry outbursts; and sleep disturbances. The examiner also noted the following symptoms: depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; suicidal ideation; assaultive urges without acting out last two years; and blunted (but not flat) affect. The examiner opined that the Veteran experienced 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. In the Veteran’s February 2018 notice of disagreement (NOD), he stated that his PTSD symptoms correlate more with the 70 to 100 percent criteria rather than 50 percent. In February 2018, a private physician indicated that he had been treating the Veteran since February 2017. The private physician stated that the Veteran met the criteria for a 100 percent permanent and total disability with the following symptoms: 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, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name. In a March 2018 nursing note, the Veteran reported being depressed and having suicidal ideation every day, but he stated that he had people in his life that need him. He stated that he has had suicidal ideation since 1969. In May 2018, VA provided another examination for the Veteran concerning his PTSD. The Veteran reported that his wife died within the past year. He also reported that he remained in contact with his children. Additionally, the Veteran stated that he stayed to himself and worked around the house to keep busy. He stated that he used to plan fishing trips with his brothers, but they had not done that in a while. Regarding his occupational history, the Veteran reported that he sometimes becomes angry at work and it was like he was back in Vietnam. He stated that he tried to calm down when triggered. The Veteran reported having passive thoughts of suicide daily, but he did not plan to do anything. He did not report any homicidal ideation. The examiner noted that the Veteran was on time for the examination and casually dressed with appropriate hygiene. The examiner also noted that the Veteran was dysthymic with flattened affect and was cooperative and engaged throughout the examination. Under the criteria for PTSD, the examiner indicated that the Veteran experienced the following: recurrent distressing memories and dreams related to trauma; flashbacks; intense or prolonged psychological distress at exposure to internal or external cues that resemble trauma; avoidance of distressing memories, thoughts, or feelings about trauma; persistent negative emotional state; markedly diminished interest or participation in significant activities; problems with concentration; and sleep disturbance. The examiner noted that the Veteran’s symptoms were the following: depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or worklike setting; suicidal ideation; irritability and easily angered; poor concentration; flashbacks and he will see people moving and then he comes back to normal. The examiner opined that the Veteran experienced occupational and social impairment with reduced reliability and productivity. The examiner stated that the symptoms like flashbacks at work and difficulty concentrating had a significant impact on his occupational functioning and his symptoms of isolation and irritability had a significant impact on his social functioning. In a November 2018 nursing note, the Veteran reported being very depressed and that he has suicidal ideation every day. However, he stated that he could not kill himself now. He stated he has had suicidal ideation every day since 1970. He had no plan or specific intent. The Veteran’s mental status was noted as alert and oriented throughout his medical records. See March 2019 triage note; See March 2018 primary care note. Analysis After thoroughly reviewing the evidence, as summarized above, the Board finds that a rating in excess of 70 percent is not warranted because the evidence does not suggest that the Veteran’s PTSD symptoms cause total occupational and social impairment, as contemplated by the 100 percent disability rating. The record reflects that the Veteran experiences daily suicidal ideation. In VA treatment records, the Veteran repeatedly and consistently denied suicidal intent, plan, or past attempts, and—without minimizing the severity of this symptom and the suffering this must cause the Veteran—the Board finds that the totality of the evidence indicates that the Veteran is not in persistent danger of hurting himself. Additionally, the record reflects that the Veteran’s flashbacks affect his occupational functioning, there is no evidence that the flashbacks have led to total occupational impairment because the Veteran is still working. The Board acknowledges that the private physician opined that the Veteran was totally occupationally and socially impaired. However, the physician merely listed the symptoms contemplated by the 100 percent rating criteria, exactly as they appear in the VA Rating Schedule, but—even assuming that the Veteran’s symptoms exactly match those listed as examples in the Rating Schedule—the physician failed to explain how these cause total and occupational functioning, given the fact that he is still working and the inconsistency of this opinion with the rest of the evidence of record. Because the physician did not provide any rationale in his opinion and because the opinion seems to be merely parroting the Rating Schedule without application to this individual Veteran’s situation, the Board cannot assign this opinion significant probative weight. See 38 C.F.R. § 4.130, Code 9411; see also Nieves-Rodriguez, 22 Vet. App. At 302 (2008) (holding that a medical opinion that contains only data and conclusions is not entitled to any weight). After thoroughly reviewing the evidence, as summarized above, the Board finds that a 100 percent rating for PTSD is not warranted because the evidence does not indicate that the Veteran is totally occupationally and socially impaired due to his PTSD symptoms. He never reported hallucinations, delusions, or difficulty maintaining personal hygiene, which are contemplated by the 100 percent disability rating. Despite his anger at work, there is no record of any periods of violence and he still maintains his employment. Moreover, throughout his medical record, he has been noted as being oriented and alert. In summary, the Board finds that the Veteran's social and occupational impairment results in deficiencies in most areas and, thus, meets the criteria for a 70 percent rating. Regarding entitlement to a 100 percent rating, the probative evidence does not suggest total social and occupational impairment. Thus, while the Veteran is significantly and seriously impaired by his psychiatric symptoms, the preponderance of the evidence is against finding that his impairment rises to the kind of gross and total impairment contemplated by a 100 percent disability rating. Consequently, a rating higher than 70 percent for PTSD is not warranted. The Board notes that this decision does not leave the Veteran without recourse; if his symptoms worsen in the future, he is free to file a new claim for an increased disability rating. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Bryant, Law Clerk The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.