Citation Nr: 20003232 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 15-37 277 DATE: January 14, 2020 ORDER Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD), rated at 70 percent, is denied. FINDINGS OF FACT 1. At all times during the appeal period, the Veteran’s PTSD was manifested by occupational and social impairment, with deficiencies in most areas. 2. At no time during the appeal period did the frequency, severity, and duration of the Veteran’s symptoms more closely match total occupational and social impairment. CONCLUSION OF LAW 1. The criteria for a higher initial rating for PTSD, currently rated as 70 percent, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1988 to September 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. Entitlement to an initial rating in excess of 70 percent for PTSD is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where a claimant timely appeals the rating initially assigned for the service-connected disability, VA must consider whether the claimant is entitled to “staged” ratings to compensate them for times since filing the claim when their disability may have been more severe than at other times during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. 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 frequency, severity, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Under the General Formula, a 70 percent rating is assigned when there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood), and the impairment is attributable to 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. A 100 percent rating is assigned when there is total occupational and social impairment due to 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. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, the list of examples set forth for each rating does provide guidance as to the severity of symptoms contemplated for that rating. Id. Accordingly, while each of the examples needs not be proven in any one case, the symptoms must be analyzed considering those given examples. When evaluating a mental disorder, the rating agency 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 examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. Factual Background. In January 2014, the Veteran submitted a claim of entitlement to service connection for, inter alia, insomnia, memory problems, depression, anxiety, and “quality of life.” In October 2014, the Veteran was granted service connection for PTSD to include insomnia, and was assigned a 70 percent rating effective from January 13, 2014 (subsequently changed to January 14, 2014). Thereafter, in November 2014, the Veteran submitted a Notice of Disagreement (NOD) as to the initial rating assigned. The claim was subsequently perfected and is the claim currently before the Board. In a March 2014 VA evaluation, the Veteran was diagnosed with PTSD in conformance with DMS-5 criteria. The examining psychologist noted that the Veteran’s PTSD symptoms include: depressed mood; anxiety; panic attacks (occurring weekly or less often); chronic sleep impairment; flattened affect; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; mild memory loss (forgetting names, directions, or recent events); impaired impulse control; and both difficulty in establishing and maintaining effective relationships, and inability to establish and maintain relationships. The psychologist also noted that the Veteran’s PTSD was manifested by occupational and social impairment with reduced reliability and productivity. May 2014 VA Initial PTSD Disability Benefits Questionnaire (DBQ). In a March 2016 VA evaluation, the examining psychologist noted that the Veteran’s PTSD symptoms included: depressed mood; anxiety; suspiciousness; panic attacks (occurring weekly or less often); near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss (forgetting names, directions, or recent events); circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; difficulty understanding complex commands; impaired judgment; disturbances of motivation and mood; difficulty establishing and maintaining work and social relationships; difficulty adapting to stressful circumstances; inability to establish and maintain effective relationships; and impaired impulse control. The psychologist also noted that the Veteran was fully oriented and that he denied suicidal ideations. Though the psychologist noted that the Veteran reported struggles with homicidal urges, the psychologist did not note that the Veteran’s symptoms included a persistent danger of hurting others. Lastly, the psychologist noted that the Veteran’s PTSD was manifested by occupational and social impairment with deficiencies in most areas. March 2016 VA Review PTSD DBQ. In July 2017, in an initial session with B. A., a VA social worker, the Veteran reported symptoms of sleep impairment and hypervigilance, and strongly denied thoughts of suicide or homicide. Additionally, B. A. noted that the Veteran was alert and fully oriented, had clear and coherent speech at a normal rate, intact long-term and short-term memory, and denied auditory or visual hallucinations. July 2017 Social Worker Outpatient Note, Allentown Outpatient Clinic (OPC) records, received April 2019 in CAPRI. In March 2019, the Veteran submitted a buddy statement from S.K., with whom he is romantically involved and co-habitats. In this statement, S.K. asserted that the Veteran has memory problems and insomnia, as well headaches, chronic fatigue, stomach discomfort, erectile dysfunction, and pain in his lower back, joints, and muscles. S.K. averred that the Veteran’s medical conditions have caused him to miss holiday gatherings, birthday parties, and various other social events, though she did not elaborate. See March 2018 S.K. Buddy Statement, received March 2019. The Veteran’s medical records indicate that, between July 2017 and January 2019, the Veteran’s reported symptomatology included hypervigilance, difficulty concentrating, low motivation, avoidance, anxiety, and anger. During this period, the Veteran consistently denied auditory or visual hallucinations, and his insight and judgment has been found to be good. Additionally, the Veteran’s memory, both long and short term, has consistently been found intact, with the exception of a January 2017 counseling session in which the Veteran’s memory and concentration was reported as impaired. See Wilkes-Barre VA Medical Center (VAMC) records, received April 2019 in CAPRI. In a September 2019 Board hearing, the Veteran denied being a danger to himself or others, having grossly inappropriate behavior, or having persistent delusions or hallucinations. The Veteran reported having good personal hygiene, memory loss, and experiencing hallucinations. With respect to memory loss, the Veteran stated that there have been occasions where he has been driving and forgotten where he was going. As for hallucinations, the Veteran stated that he has seen people that were not in the room. The Veteran also reported that he had been absent from work for approximately one week due to his PTSD symptoms. See September 2019 Board Hearing Transcript. Analysis. Upon review of the Veteran’s entire history, the Board concludes that the preponderance of the evidence is against a rating in excess of 70 percent at any time during the appeal period. As discussed above, the Veteran is currently rated at 70 percent for his PTSD throughout the appeal period. As such, to warrant an increased rating, the evidence must show that the Veteran’s symptoms more nearly approximated a rating of 100 percent at some point during the appeal period. See 38 C.F.R. § 4.7. A 100 percent rating is assigned when there is total occupational and social impairment due to 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. To date, at no point has the Veteran reported, nor has the Veteran’s symptomatology been noted as including, gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting himself or others, an intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, his own occupation, or his own name. See Wilkes-Barre VAMC records; May 2014 VA Initial PTSD DBQ; March 2016 VA Review PTSD DBQ. Indeed, as recently as September 2019, the Veteran has specifically denied grossly inappropriate behavior and persistent danger of hurting himself or others, attested to having good personal hygiene, and stated that his memory loss consists of occasionally forgetting where he is going. See September 2019 Board Hearing Transcript. Further weighing against a finding of total occupational and social impairment, the record indicates that the Veteran has been employed as a firefighter since 2000, and that he has been in a romantic relationship with S.K. for approximately four years, with whom he currently cohabitates. See March 2016 VA Review PTSD DBQ; March 2018 S.K. Buddy Statement. The Board acknowledges the Veteran’s assertion that he has experienced hallucinations. See September 2019 Board Hearing Transcript. However, prior to the Veteran’s testimony, the Veteran has consistently denied auditory or visual hallucinations. See Wilkes-Barre VAMC records; May 2014 VA Initial PTSD DBQ; March 2016 VA Review PTSD DBQ. The Board finds that the Veteran’s statements to the May 2014 and March 2016 examiners while seeking a medical diagnosis, as well as those made in the course of VA treatment for his PTSD, to be more credible than his statements subsequent thereto that are in pursuit of his claim, especially where no competent evidence has been provided to put the examination findings in question. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997); Williams v. Gov. of Virgin Islands, 271 F. Supp. 2d 696, 702 (V.I. 2003) (noting that statements made for the purpose of diagnosis or treatment “are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care”). The Board also acknowledges that in his September 2019 Board hearing, the Veteran asserted that he had been out of work for over a week due to his PTSD symptoms, which was documented by Dr. E. Nolan, a VA clinic psychologist. However, while the record does show that the Veteran was absent from work for approximately one week due to his PTSD symptoms, Dr. E. Nolan also noted that the Veteran remained capable of performing the essential functions of his position without restrictions. See September 2019 City of Allentown Medical Certification. In sum, the preponderance of the evidence weighs against finding that the frequency, severity, and duration of the Veteran’s symptoms result in the level of impairment required for a rating in excess of 70 percent at any time during the appeal period. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.