Citation Nr: 20003530 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 19-08 933 DATE: January 16, 2020 ORDER Entitlement to an increased evaluation higher than 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s PTSD had been manifested by no more than occupational and social impairment with reduced reliability and productivity, but was not productive of deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for an evaluation higher than 50 percent for PTSD, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from October 1989 to October 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an increased evaluation higher than 50 percent for posttraumatic stress disorder (PTSD) The Veteran has claimed a worsening in his symptoms of PTSD. His PTSD is currently evaluated as 50 percent disabling. A 50-percent rating will be assigned for PTSD where the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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. 38 C.F.R. § 4.130, DC 9411. A 70-percent rating applies when a veteran’s occupational and social impairment reflects 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Id. A 100-percent rating is assigned when there is 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; and memory loss for names of close relatives, own occupation, or own name. Id. “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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. A determination as to entitlement to the 70 percent rating requires an ultimate finding as to the level of impairment in most of the areas referenced in the criteria. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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 moment of the examination. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Turning to the facts of the case, in a September 2018 statement he reported being seen by Dr. J. since May 2017. Private treatment records indicate the Veteran was treated for his psychiatric condition by Dr. J. At the initial May 2017 assessment, he reported being easily aggravated and depressed, some road rage, and difficulty sleeping. The Veteran had last been seen by Dr. J. in November 2010 and had stopped treatment after that time. He reported avoiding large crowds and not liking to talk to his friends as much as he used to because of his anger issues. He reported staying busy to avoid confrontation with his wife. He has been a truck driver for 17 years. He attends a religious service every Sunday. He was started on medication. At a June 2017 visit, he reported improved sleep. At a September 2017 visit, he reported improvement in his anxiety levels. At a March 2018 visit, he reported nightmares on a weekly basis. He reported being easily aggravated, and having no patience. His sleep was going ok. At a December 2018 visit, he had symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, difficulty adapting to stressful circumstances, inability to establish effective relationships. VA treatment records document a mental health follow up visit in September 2011. After this visit the Veteran was seen at the VAMC on an annual basis. At his July 2017 visit he reported he had started treatment for his PTSD with Dr. J. He reported doing ok, but having good and bad days depending on his PTSD symptoms. He reported having nightmares occasionally, and having thoughts of hurting others. He began treatment with Dr. J. in March 2017, and prior to that time had coped with his symptoms on his own. The Veteran underwent an examination in November 2018. He was diagnosed with PTSD and depression. The examiner noted it is not possible to differentiate what symptoms are attributable to each diagnosis, as the disorders are mutually aggravating. His symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. Symptoms included: depressed mood, anxiety, chronic sleep impairment, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. On examination, he was open, cooperative, and tearful. He presented with good hygiene and grooming. His speech was within normal limits. He was alert, attentive and orient to person place time and situation. His memory was intact. He presented with abstract reasoning. His thought processes were logical and organized, with no evidence of delusional thought content. He characterized his mood as a little anxious, and with a depressed affect. He denied suicidal or homicidal ideation. As for social functioning, he reported that his symptoms have negatively impacted his marriage. His irritability and social isolation has taken a toll. He reported a good relationship with his son, though he feels emotionally detached from him. He attended religious services regularly and has one to two friends he sees occasionally. He enjoys working on his cars and trucks and finds solace in the activity. He exercises daily. He reported a good relationship with his four siblings. As for occupational functioning, he has been self-employed as a truck driver for 18 years. He enjoyed working alone and has increased anxiety when he must interact with his contractors. He denied concentration problems but reported fatigue from poor sleep that can interfere with his job functioning. He denied feeling pressure related to his work. He reported irritability that can interfere with his work relationships. As noted, a rating in excess of 50 percent requires a finding that the Veteran has deficiencies in most of the areas listed in the criteria for a 70 percent rating. 38 C.F.R. § 4.130. As it relates to his judgment and thinking, the Veteran was regularly described as having normal thought processes. He had no impairment of memory. There was no indication of impaired judgment, impaired thought processes or communication, obsessional rituals, or delusions or hallucinations. He has reported nightmares on an occasional basis. Throughout the course of the appeal his judgment, insight, and thought processes, were all intact. There is no evidence of record of hallucinations or delusions. Throughout the period on appeal, there was no evidence of obsessional rituals, speech intermittently illogical or obscure, spatial disorientation, or impaired thought processes. During the appeal period, he specifically denied suicidal and homicidal ideations. Taking into account the severity, duration, and frequency of these manifestations, the Veteran does not have deficiencies in the areas of judgment and thinking that give rise to the next higher evaluation of 70 percent. As for maintaining relationships, the Veteran has been married over 25 years, and reported an ok relationship with his wife—despite some marital problems. He reported a good relationship with his child and his siblings. He attends religious services regularly, and has maintained a couple good friends. He exercises on a regular basis, and has hobbies he still enjoys. He has reported avoiding large crowds. This evidence indicates the Veteran is capable of maintaining some level of social functioning. The 50 percent rating contemplates impaired social relationships, including those with family members. There is no evidence of more severe deficiencies in this area, as such entitlement to the next higher evaluation of 70 percent is not warranted. The Veteran has been self-employed for over 15 years. Though he has reported some anxiety related to conflict with contractors, there is no indication that his symptoms have resulted in decreased work efficiency. His symptoms have resulted in occupational impairment with occasional decrease in work efficiency an intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. There was no evidence of cognitive limitations related to work tasks. In evaluating the Veteran’s increased rating claim, the Board is aware that the symptoms listed under the 50 and 70 percent rating are essentially examples of the type and degree of symptoms for that rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher rating. However, even considering the Veteran’s competent lay testimony and description of his symptoms, the Board finds that the record does not show the Veteran manifested symptoms that equal or more nearly approximate the criteria for a 70 percent rating. As noted above, 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 the residual conditions in civil occupations. 38 C.F.R. § 4.1. The assignment of a high disability rating of 50 percent is recognition of significant interference of the Veteran’s PTSD in his employment and his social life. Accordingly, entitlement to the next higher evaluation of 70 percent is not warranted. Therefore, the Board finds that the nature, frequency, duration, and severity of the Veteran’s symptoms as they relate to his psychiatric diagnosis warrant no more than a 50 percent schedular rating. This finding is based on the totality of evidence reflecting the occupational and social impact of his PTSD symptoms. As the weight of the evidence is against a higher rating, reasonable doubt does not arise. 38 U.S.C. § 5107(b) H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, 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.