Citation Nr: 19164609 Decision Date: 08/20/19 Archive Date: 08/20/19 DOCKET NO. 15-20 015A DATE: August 20, 2019 ORDER Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s PTSD causes occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria are not met for an initial rating higher than 30 percent for the PTSD. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2018).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1967 to March 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an initial rating in excess of 30 percent for PTSD 38 C.F.R. § 3.655 stipulates that, in an increased-rating claim, the claim “shall” be denied when, as an example, the Veteran fails to report for a needed examination. Conversely, in an initial-rating claim, when the Veteran fails to report for an examination, the claim shall be rated based on the evidence of record rather than summarily denied because an initial-rating claim is an original compensation claim according to 38 C.F.R. § 3.655(b). See Turk v. Peake, 21 Vet. App. 565 (2008). Disability evaluations are determined by the application of a schedule of ratings (Rating Schedule), which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. PTSD is rated under 38 C.F.R. § 4.130, DC 9411, which provides for a 30 percent rating when there is 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, and mild memory loss (such as forgetting names, directions, recent events.   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 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; and 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 for 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 38 C.F.R. § 4.130 demonstrates that the symptoms listed after that phrase are not intended to constitute an exhaustive list, but rather are to serve as mere examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment). In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held 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.” Id. When evaluating the level of disability of a mental disorder, the rating agency shall consider the extent of social impairment but shall not assign an evaluation based solely on the basis of social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. When a question arises as to which of two ratings under a particular code applies, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. There is a presumption of administrative regularity with regard to processes and procedures throughout the VA administration process. Mindenhall v. Brown, 7 Vet. App. 271 (1994). The presumption is not absolute and may be rebutted by the submission of clear evidence to contrary. Warfield v. Gober, 10 Vet. App. 483 (1997). Prior to May 2013, the higher Veterans Court (CAVC) had held that VA was entitled to the presumption of administrative regularity that VA employees had properly discharged their official duty to notify a Veteran, as an example, of a scheduled VA examination. This presumption of administrative regularity as mentioned could be rebutted by clear evidence to the contrary. The Court also had   held that the absence of a copy of the notice letter in the claims file did not constitute clear evidence to rebut this presumption of administrative regularity. See Kyhn v. Shinseki, 24 Vet. App. 228, at 236 (2011) (Kyhn II). However, while that appeal was pending, the higher Federal Circuit Court issued Kyhn v. Shinseki, 2013 WL 1846562 (C.A. Fed., May 3, 2013). In Kyhn the Federal Circuit Court vacated the lower Court’s Kyhn II decision, holding that the Court had relied upon extra-record evidence to make a finding of fact in the first instance. The lower Court (CAVC) had allowed VA to submit an affidavit of a manager from the VA Medical Center (VAMC) involved establishing the regular practice of mailing such notices. But the Federal Circuit Court held the CAVC could not consider such evidence because judicial notice does not extend to affidavits from “a party’s employees regarding otherwise unknown internal procedures.” (slip op. at 7). The Federal Circuit Court went on in Kyhn to further hold that the CAVC had done impermissible fact-finding in the first instance. The Federal Circuit Court essentially drew a distinction between “instances where the presumption of regularity was premised upon independent legal authority” and instance where it was based upon “evidentiary findings.” (slip op. at 10). Rebutting the presumption of administrative regularity usually requires more than a mere allegation of defective process or procedure, nonreceipt of a communication, or other failing, etc. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Schoolman v. West, 12 Vet. App. 307, 310 (1999). Moreover, as already explained, this presumption of administrative regularity does not diminish the claimant’s responsibility to keep VA informed of changes of address and, if he does not, VA is not obligated to turn up heaven and earth to find him. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). But this presumption is nonetheless as also mentioned rebuttable, notably as an example when there is clear evidence of non-delivery (as confirmed by the U.S. Postal Service returning the mail as undeliverable) and if there is another address on file at which the appellant perhaps could be located.   Here, although the file does not contain the actual letter informing the Veteran of the time, date and location of the examination, the record does reflect that he was advised that he was being scheduled for an examination, the address of record at the time appears to be correct, and there is no indication that his address had changed or that any mail was returned to VA for failure to deliver. Thus, the presumption of administrative regularity would apply in this situation. Also, the Veteran has not alleged that he did not receive the notification in question; and the August 2019 supplemental statement of the case (SSOC) informed him and his attorney of his failure to report. In summary, the record indicates the Veteran failed to report for his July 2019 VA examination and has not provided any justifiable explanation or other indication of good cause for his failure to report for that examination. Accordingly, as already explained, this claim consequently must be decided based on the evidence already of record. 38 C.F.R. § 3.655(b), Turk v. Peake, 21 Vet. App. 565 (2008). An unfortunate consequence of this is that additional evidence that could have been obtained, including from the scheduled examination reassessing the severity of the PTSD, could not be obtained, and it may have benefitted the claim. During a November 2012 VA examination the Veteran reported that he was married and employed as a truck driver, though he was working less due to reported decreased cognitive function. He reported depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, and disturbances of motivation and mood. The examiner diagnosed the Veteran with PTSD and opined that it caused him 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, or symptoms controlled by medication.   Throughout the pendency of this appeal the Veteran has received ongoing treatment from VA for his PTSD. He reported sleep disturbances, forgetfulness, panic attacks, poor concentration, weight gain, exaggerated startle response, and constricted mood. But at no time during the period on appeal has he exhibited what amounts to 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; or difficulty in establishing and maintaining effective work and social relationships. He has been found able to fully and independently perform activities of daily living. In short, occupational and social impairment with reduced reliability and productivity simply is not shown and, therefore, a schedular rating greater than 30 percent is not warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky Associate Counsel 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.