Citation Nr: 19139865 Decision Date: 05/22/19 Archive Date: 05/22/19 DOCKET NO. 08-28 774 DATE: May 22, 2019 ORDER A rating for PTSD in excess of 50 percent is denied. FINDING OF FACT The weight of the evidence shows that it is less likely than not that the Veteran’s PTSD symptoms throughout the course of this appeal caused either total social and total occupational impairment, or occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The rating criteria for PTSD in excess of 50 percent have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.327, 4.6, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served as a corpsman in the United States Navy from August 2001 to August 2006, to include his gallant service with distinction in Iraq. The Veteran has also been awarded the combat action ribbon. In April 2007, the Regional Office (RO) granted service connection for his PTSD, effectuated from the date of the Veteran’s separation from service and assigned a rating at 10 percent. The Veteran appealed the assigned rating to the Board, seeking a rating at 50 percent. The Board remanded the claim for further development, and the RO then increased the rating for PTSD to 50 percent, effectuating the increase from the date of grant of service connection. The Veteran appealed the rating. In November 2017, the Board denied a rating in excess of 50 percent Eventually, this appeal retuned to the Board in November 2017. Upon reviewing the claim, the Board has found that the Veteran’s PTSD throughout the rating period on appeal has not risen to the severity level contemplated by the rating criteria for 70 percent or greater. Accordingly, the Board denied a rating in excess of 50 percent. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans’ Claims (CAVC), and the Board’s decision was vacated and remanded for compliance with a joint motion for remand (“JMR”), which concluded that the Board had provided an inadequate statement of reasons or bases for denying a rating in excess of 50 percent for PTSD. Specifically, the JMR concluded that the Board had erred with respect to its treatment and consideration of suicidal ideation. The JMR noted that suicidal ideation is a listed symptom that is potentially commensurate with a 70 percent disability level, and identified several pieces of evidence documenting suicidal ideation in the Veteran’s medical records, including a June 2017 VA exam), a December 2013 VA examination, a July 2007 VA resident note recording recurrent thoughts of suicide or death, and a June 2007 NOD noting weekly thoughts of committing suicide). The JMR noted that the Board had not analyzed the frequency, severity and duration of this symptom or its effect on his occupational and social functioning. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The JMR also found that the Board had not adequately discussed evidence indicating irritability, anger management issues, nor had the Board addressed whether such instances were indicative of impaired impulse control. The JMR pointed to the June 2017 VAX noting “irritability...anger management”), the December 2013 VA examination recording “Irritable behavior and angry outbursts”, an October 2007 VA treatment record noting the Veteran’s assertion that he “can’t control anger” and says things to family he regrets), a VA September 2007 Vocational note stating “[a]nger and frustration [are] unpredictable”, a December 20, 2006 VA psychiatry note indicating the Veteran had reported frustration with some fights with his girlfriend), a September 2006 treatment record noting the Veteran “...reports more angry and wanting to fight”), a 2008 VA Form 9 reporting angry outbursts), an October 2006 VA special psychiatric examination noting the Veteran had angry outbursts and was easily irritable. It was suggested that the Board had failed to adequately take into consideration such symptoms of irritability and anger and analyze the severity, duration, and frequency of those symptoms. See Vazquez-Claudio, 713 F.3d 112. The Board has carefully reviewed the concerns expressed in the JMR and has reviewed the record again with those concerns in mind. The Board will endeavor to address them now. In seeking a rating increase in excess of 50 percent, as reflected in his April 2019 Appellant’s Brief, the Veteran is now contending that, in addition to the symptoms previously acknowledged and considered by the Board, the evidence of his anger management issues and irritability inadequately addressed by the Board might be indicative of an impaired impulse control which is a symptom contemplated by the rating criteria for 70 percent. Likewise, the Veteran further asserts that, in light of the Board’s failure to adequately address the evidence of suicidal ideation which is specifically listed as a symptom under the rating criteria for 70 percent, a rating in excess of 50 percent should be granted. In his July 2017 Appellant’s Brief, the Veteran states that at his December 2013 VA evaluation, an examiner specifically noted that he had suicidal ideations, weekly panic attacks, chronic sleep impairment, memory loss, problems getting along with people, persistent negative emotional state, markedly diminished interest, feeling of detachment, irritability, hypervigilance, problems with concentration, and sleep disturbance lasting more than one month. The Veteran further points out that the December 2013 evaluation report reflects the examiner’s opinion that his PTSD symptoms cause clinically significant distress and impairment in social and occupational areas. The Veteran states that the same findings were noted during a subsequent VA evaluation in June 2017. Indeed, at both 2013 and 2017 VA evaluations, the examiners opined that the Veteran’s PTSD symptoms cause clinically significant distress and impairment in social and occupational areas. Moreover, the October 2006 evaluation report reflects an assessment along the same lines. However, the Veteran’s reliance on this information in advancing his argument for a higher rating is misplaced because the “clinically significant” finding is not a rating criterion. This finding is material only insofar as necessary to confirm his PTSD diagnosis verifying the continued existence of a present disability, which is a fundamental legal requirement for establishing and then continuing service connection. See 38 C.F.R. §3.303, 3.327. More significantly, the 2017 evaluation report reflects an examiner’s explanation that the Veteran’s PTSD symptoms resulting in clinically significant distress and impairment in social and occupational areas cause “mild to moderate impairment in social functioning and only mild impairment in occupational functioning.” In short, these severity levels of social and occupational impairment resulting from the Veteran’s PTSD symptoms are the ultimate bases for why a rating in excess of 50 percent is not warranted in this case. In reaching this conclusion, the Board essentially adopts its prior decision to deny this appeal, but will attempt to provide additional explanation for the decision. All mental disabilities, to include PTSD, are rated under the General Formula for Mental Disorders which provides for ratings at zero, 10, 30, 50, 70, or 100 percent. See 38 C.F.R. § 4.130. Under the Formula, a noncompensable rating is assigned when a veteran’s PTSD has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. The next higher rating at 10 percent is assigned when a veteran’s PTSD causes 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 when symptoms are controlled by continuous medication. Id. The next higher rating at 30 percent is assigned when a veteran’s PTSD causes 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, or mild memory loss (such as forgetting names, directions, recent events). Id. The next higher rating at 50 percent is assigned when a veteran’s PTSD causes 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-term 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. Id. The next higher rating at 70 percent is assigned when a veteran’s PTSD causes 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); or an inability to establish and maintain effective relationships. Id. A total disability rating is assigned when a veteran’s PTSD causes total occupational and total social impairment. Id. In sum, the Formula provides for the evaluations based on a full spectrum of the severity levels caused by the PTSD symptoms, ranging from no actual functional impairment on the low end to totally disabling on the high end. Applying these rating criteria to the Veteran’s circumstances is never mechanical. One of the principles guiding ratings of disabilities is ensuring that the decisions are fair and just. See 38 C.F.R. § 4.6. To that effect, the Board conducts holistic analysis in determining the extent to which PTSD symptoms functionally affect a veteran’s life in social and occupational areas. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). In further evaluating PTSD, the regulations mandate that ratings must be assigned based on all the evidence of record rather than on any sole piece of the evidence, to include the presence of any specific symptom. See 38 C.F.R. § 4.126. Of particular note is the regulatory phrase “symptoms such as” denoting that PTSD symptoms specifically listed in the rating schedule are mere examples that guide the Board’s analysis. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). This means that the list is not exhaustive and an absence of any particular symptom from the list is not dispositive. The converse is also true, that is, a symptom listed under the schedular criteria does not, on its own, determine the assigned ratings. This is paramount in this case because the gravamen of the Veteran’s contention in this appeal is the presence of specific symptoms, namely, his suicidal ideation and possible impaired impulse control listed under the rating criteria for 70 percent. The analysis, however, does not stop at merely finding the presence of a particular symptom, but the analysis must go a step further to determining how the symptom or symptoms impacts the Veteran’s social and occupational functioning. Further assessing the PTSD symptomatology entails considerations of frequency, severity, and duration of the associated symptoms. See 38 C.F.R. § 4.126(a). For example, panic attacks are a symptom of PTSD. However, the rating criteria for 50 percent requires an occurrence of panic attacks more than once a week, unlike in this case, where the Veteran has panic attacks weekly or less often. While the “weekly or less often” frequency squarely meets the criteria for 30 rather than for 50 percent, in addition to considering symptoms along with their frequency, severity, and duration, the regulations unequivocally require an ultimate factual conclusion as to the specific severity level of social and occupational impairment due to PTSD symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013). The severity levels of impairment, unlike symptomatology, determine an outcome. For example, on the one hand, a higher evaluation is warranted if the symptoms of weekly panic attacks contemplated by the rating criteria for 30 percent cause nearly continuous and persistent decrease in efficiency and productivity as required by the rating criteria for 50 percent. This contrasts with the rating criteria at 30 percent requiring only occasional decrease in work efficiency or only intermittent periods of inability to perform occupational tasks. On the other hand, if panic attacks occur more often than once per week as contemplated by the rating criteria for 50 percent but result only in occasional decrease in work efficiency required by the rating criteria for 30 percent, a lower evaluation would be more appropriate. As such, the ratings are ultimately assigned based on the severity levels of the resulting social and occupational impairment, not the underlying symptoms, and whichever percentage, as contemplated by the Formula, those severity levels most closely approximate. Id. See also 38 C.F.R. § 4.7. By implication, merely finding any symptom specifically listed in the rating schedule under a particular percentage shall not establish an entitlement to the percentage under which the symptom is listed, unless the evidence also shows that the resulting functional impairment rises to the severity level contemplated by the rating criteria for that percentage. It follows that, while the symptoms are indeed relevant to guiding evaluations, the resulting impairment is an ultimate gauge for PTSD ratings. Notwithstanding the presence of the symptoms such as suicidal ideation or irritability and anger management issues, regardless of whether or not they might constitute an impaired impulse control, the evidence of record must show that the requisite level of the resulting social and occupational impairment is severe enough to warrant a higher evaluation, in this case, at 70 percent or greater. Accordingly, the remaining issue in this appeal is whether the severity level of the Veteran’s social and occupational impairment due to his PTSD symptoms satisfies the rating criteria for 70 percent or greater. In analyzing the specific levels of impairment, the Board considers the Veteran’s reports of the self-observable underlying symptoms which he is competent to report. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). But further considering that lay persons without specialized knowledge, training, or experience, lack the requisite expertise to clinically assess the symptomatology and resulting severity levels of the medical complex PTSD, while the Board may not render its own medical opinions, the Board heavily relies on clinical evaluations. In this case, the June 2017, December 2013, and October 2006 clinical evaluations do not show or suggest that the Veteran’s PTSD symptomatology caused social and occupational impairment beyond the 50 percent rating that is currently assigned. The June 2017 evaluation report reflects a summary expressed in regulatory terms that the Veteran’s PTSD symptoms causes 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, which is the rating criteria for an evaluation of PTSD at 30 percent. That is, after meeting with the Veteran and reviewing his claims file, a VA psychologist concluded that the Veteran’s PTSD symptomatology was most commensurate with a 30 percent rating. In reaching this conclusion, the psychologist was fully apprised of the Veteran’s past suicidal ideations, as noted in the JMR, but she did not find that such symptoms were so severe as to cause social and occupational impairment with deficiencies in most areas. At the 2017 VA examination, the Veteran stated that he periodically gets “waves of emotion” in which he feels quite depressed, but he specifically denied any active suicidal ideation, denied having ever made a plan or had intention to commit suicide or harm himself. Rather, he explained that sometimes gets “dark thoughts” when he has these bouts (in which he thinks maybe it would be better if he was dead). It is clear from the examination report that the examiner was familiar with the Veteran’s periodic suicidal ideation, as the report memorializes a discussion of the importance of calling the VA suicide hotline if there is ever a serious need. However, even taking into account the Veteran’s discussion of past passive suicidal thoughts, the examiner still found that the psychiatric symptomatology was only mild to moderate in severity. This summary mirrors the December 2013 evaluation and is consistent with the October 2006 evaluation and the Veteran’s VA treatment records. The 2017 evaluation report further reflects that the examiner, prior to reaching the conclusion, has reviewed and considered the Veteran’s entire claims file, his full medical history, to include past examinations and progress treatment notes, all reported symptomatology, in-person observations, and clinical assessments. Based on the comprehensive data, the examiner opined that the Veteran’s symptoms are overall mild to moderate and cause mild to moderate social impairment and only mild occupational impairment. In considering this expert opinion, especially examiner’s holistic approach and the thoroughness and soundness of the opinion, the Board accords this opinion significant probative value. The Veteran neither provided any evidence to the contrary nor argued otherwise. Rather, the Veteran essentially contends that a mere presence of a symptom listed under the rating criteria for a particular percentage entitles him to that percentage. However, as explained, the symptoms are mere examples guiding evaluations and the ratings are ultimately assigned based on the resulting social and occupational impairment which, in this case, has not been shown to be severe enough at any time during the rating period on appeal to warrant a rating in excess of 50 percent. The rating criteria for 70 percent requires the evidence of social and occupational impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, which is not supported by the evidence of record. Of note, particularly given the regulatory phrase “such as,” the list of areas is not exhaustive or formulaic, and akin to the list of symptoms guides the analysis. In the area of work, the Veteran’s occupational track record from May 2008 to the present shows consistent excellent performance over many years, as reflected in his VA Vocational Rehabilitation Program records received in March 2017. This evidence does not show or suggest any occupational impairment. To the contrary, this evidence strongly suggests that the Veteran’s PTSD has no apparent effect on his occupational functioning. For example, as a full-time Immigration Services Assistant with the Department of Homeland Security (DHS), the Veteran crossed trained in majority of his duties and tasks, achieving advanced competence within less than six months of his appointment in 2015. In execution of his duties, the Veteran effectively utilized his customer service and analytical skills, while communicating and coordinating between multiple organizations, using various computer programs, and assisting in naturalization ceremonies with over 1,300 participants. The Veteran further achieved the above-average production goals and performance expected of employees with comparable tenure, duties, and responsibilities. At the June 2017 examination, the Veteran indicated that after one year in his role as the Assistant he had been promoted to an Immigration Services Officer position. Prior to his employment with the DHS, the Veteran worked as a civilian for the United States Navy from 2008 to 2015. As a Health Technician-Transcriptionist, he effectively used teamwork, advanced knowledge, technical expertise, while not merely executing his duties and responsibilities in a timely and efficient manner but maintaining high levels of efficiency and work production. As an Administrative Medical Support Assistant Specialist, the Veteran was noted to have positively contributed to continuously maximizing and optimizing the organizational workload. In the area of school, the Veteran reported at his June 2017 examination that he was taking the last class toward his bachelor’s degree with a GPA of 3.2, which shows an academic performance well above the 2.0 average. Notwithstanding his professional and academic performance and rather impressive accomplishments, which show no occupational impairment and thus effectively rules out total occupational impairment required for a total disability rating, the Veteran consistently reported difficulty concentrating, particularly when reading, which is an essential necessity at work and school. Thus, the Veteran’s PTSD symptoms conceivably cause at least some occupational impairment. In light of his stable employment history over many years and the overall high levels of performance and accomplishments, the severity level of occupational impairment due to his PTSD symptoms, at most, is mild. In social functioning, the Veteran’s PTSD symptoms affect him more profoundly. In area of family relations, the Veteran reported at the October 2006 examination that he was dating his girlfriend from Japan for over two years. At that time, the Veteran also reported arguing a lot due to his frustrations. Then, at the time of the June 2017 examination, the Veteran reported that he had been married to her for nine years. While not without marital challenges and brief separations, such as the time when the Veteran’s wife left for Japan for about three months or when the Veteran had to relocate for employment, they eventually reunited to resume living together and working through their differences. The Veteran also reported a very close relationship with his parents. The Veteran further reported a couple of friends he hangs out with on occasion and some he stays in contact via Facebook. The Veteran also has been engaged, albeit intermittently, with a martial arts group and his faith community. The Veteran, however, also reported difficulty in relating to people, forming new friendships, maintaining engagements with community, and decreased interests. Of particular note, in considering the Veteran’s reports of problems getting along with people, the reports of his successful dealings in the course of his employment with many organizations and people stands out. Especially his performance during naturalization ceremonies with over 1,300 participants, to include hundreds of foreign nationals from around the globe and from practically all walks of life, suggest a high degree of tolerance toward people and effective communication. Of further note, at the 2017 evaluation, the Veteran reported getting better at masking his PTSD symptoms from others. Such a characterization translated into functional terms is indicative of effectively managing his PTSD symptomatology. This evidence coupled with the Veteran’s work history and levels of performance suggests that the Veteran fully controls his behavior in a work environment. This does not in any way discount the gravity of impact the Veteran’s PTSD has on his life. The Board recognizes his meritorious military service and insurmountable challenges he had faced during his service particularly in combat which continues to affect him in certain ways, particularly in controlling his emotions. Of note, a 50 percent rating does contemplate difficulty in establishing and maintaining effective work and social relationships. This appears to be commensurate with what the Veteran is experiencing as he is married and has work and social contacts. A 70 percent rating contemplates an inability to establish and maintain effective relationships, which again is not the case here. The Board does not wish to minimize the Veteran’s psychiatric symptomatology and the impact it has on his life, but it is for that reason that the Veteran receives a 70 percent rating. The Veteran reported depression, anxiety, irritability, and anger issues. Indeed, the Veteran has reported (and as was noted in the JMR) some impaired impulse control and anger. Yet the Veteran’s irritability and anger management issues appear to stop short of what is consistent with a 70 percent rating which would include unprovoked irritability with periods of violence which the Veteran consistently denied over the years. Likewise, the Veteran’s passive suicidal ideation is different from “suicidal ideation” within the meaning of the schedular criteria for 70 percent. Particularly a rating at 70 percent contemplates recurrent severe behavioral problems and behaviors that are irrational, impulsive, and violent. The Veteran has consistently denied arrests, legal, or violent behavior problems. Rather, he reported that he “gets emotional.” The Veteran denied that he has ever had actual thoughts of committing suicide or has ever taken any steps to plan or to execute. He reported that sometimes he gets “dark thoughts” when he has these bouts, explaining that he feels that he might be better off being dead. This emotional rather than behavioral manifestation of his PTSD most closely approximates disturbances of motivation and mood contemplated by the rating criteria for 50 percent rather than suffering from recurrent impulsive urges to commit suicide or exhibiting uncontrollable violent tendencies toward self, as contemplated by the criteria for higher ratings. Even if the Board were to concede that the Veteran has “suicidal ideation” and “impaired impulse control” within the regulatory meaning of the rating criteria for 70 percent, absent competent evidence showing the requisite severity level of the resulting social and occupational impairment, the presence of these symptoms does not alter the outcome of this case. As shown in this case, the lay evidence of record does not show or suggest that the severity level of the Veteran’s impairment during the course of this appeal has ever risen above moderate levels. The lay evidence also resonates with the medical evidence of record showing that the Veteran’s PTSD symptoms, to include clinical findings of depression, anxiety, sleep disturbances, irritability, hypervigilance, avoidance, anhedonia, mild memory loss, and passive suicidal ideation, cause mild to moderate impairment in social functioning and only mild impairment in occupational functioning. The Veteran neither provided any evidence to the contrary nor argued otherwise. Instead, the Veteran mistakenly believes that his reports of the PTSD symptoms, which the Formula lists under the rating criteria for 70 percent, entitle him to that percentage. This contention has no bases in law. As for facts, particularly considering the significant probative value of the 2017 medical opinion consistent with all lay and all medical evidence of record, the preponderance of the evidence weighs against finding that the Veteran’s PTSD symptoms at any time during the rating period on appeal have caused the severity level of impairment required for a rating at 70 percent or greater. Therefore, the appeal is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Bardin, Associate Counsel