Citation Nr: 20005301 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 16-48 670 DATE: January 23, 2020 ORDER Entitlement to an initial rating in excess of 50 percent disabling for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s PTSD has been shown to be manifested primarily by depressed mood, irritability, hypervigilance, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, and persistent flattened affect. The frequency, severity and duration of these symptoms cause no more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.119, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to February 1970 in the Air Force. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a February 2015 rating decision by a Department of Veterans Affairs (VA) regional office (agency of original jurisdiction or AOJ). The Veteran was initially granted service connection for his PTSD with an initial rating of 30 percent. After receiving a notice of disagreement claiming that a 50 percent rating more accurately reflected his symptoms, a March 2016 rating decision increased his initial rating for PTSD to 50 percent, which the Veteran has appealed. In the September 2019 appellate brief, the Veteran’s representative requested that the Veteran be afforded a new VA examination to evaluate the current severity of his PTSD symptoms, correctly noting that his last VA examination was August 2016. However, the Board is not required to seek a new medical examination based solely on the mere passage of time. Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). The Veteran has been remarkably diligent with his PTSD treatment and has met with a VA psychologist approximately once every two months since his 2014 diagnosis. Psychological evaluations ranging from his diagnosis to as recent as April 2019 have been attached to the record. As the Veteran has made no specific claims of worsening symptoms since April 2019, the Board finds that the medical evidence of record adequately addresses his current level of impairment. See generally Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Therefore, the Board will proceed to decide the Veteran’s claim on its merits. Entitlement to an initial rating in excess of 50 percent disabling for PTSD After AOJ raised his initial PTSD rating to 50 percent in a March 2016 rating decision, the Veteran claimed in his July 2016 notice of disagreement that his PTSD symptoms were worsening and that the Diagnostic Code (DC) 9411 rating of 70 percent more accurately described his level of disability. He stated, “I have all the symptoms I read in your 70 percent criteria except not bathing.” The rating criteria for mental disorders under Diagnostic Code 9411 read as follows: A 100 percent rating requires 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. 38 C.F.R. § 4.130. A 70 percent rating requires 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 work-like setting); inability to establish and maintain effective relationships. Id. A 50 percent rating requires 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; difficulty in establishing effective work and social relationships. Id. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Federal Circuit explained that the frequency, severity, and duration of the symptoms also played an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. The Veteran reported in his April 2015 notice of disagreement that he has at least three panic attacks per week. He did not discuss these attacks during any of his treatment meetings from 2014 to 2019, and at his January 2015 and August 2016 VA psychological examinations he reported panic attacks that occurred weekly or less often. During this period, he made no claim that he has ever experienced “near continuous panic and depression” affecting his ability to function independently. He also stated that he experienced short-term memory loss, “going blank” while in the middle of talking, and that he is very hypervigilant all the time. The Veteran also reported waking up screaming at his wife in the middle of the night and being startled by a loud noise in church, causing him to run out of the room yelling. The Veteran has consistently reported hypervigilance at his VA psychological treatment sessions. Mild or short-term memory loss was also noted by the January 2015 and August 2016 VA examiners as well as his treating psychologist in a February 2016 letter. The Veteran has also continuously denied both homicidal and suicidal ideations. The January 2015 VA examiner listed the Veteran’s PTSD symptoms as depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events. The August 2016 VA examiner also noted symptoms of anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment and mild memory loss. Both examiners concluded that the Veteran experienced “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.” VA treatment records indicate that in March 2016 the Veteran reported that he was looking forward to the springtime when he could be more active, but that his nightmares had been increasing. In May 2016 he stated, “I know that I am better to my wife than I have been in years” and noted that stayed active with Vietnam Veterans of America (VVA) and other functions to keep his mind busy. He reported in July 2016 that he stayed busy with yard work and that he and his wife would be taking an upcoming trip out West to visit family for several weeks. He continued to report hypervigilance and an exaggerated startle reflex. In September 2016 he related that he was staying busy with yardwork and was dreading winter due to his decrease in activity. He stated that he enjoyed spending time with other veterans and would be helping with a VVA Christmas tree business again to stay occupied. He described enjoying his two-week trip visiting family but reported that he shook his wife during one of his nightmares. During all these meetings he described his mood and energy as “fair” and continued to report hypervigilance. The Veteran reported in February 2017 that his mood worsens over the winter months and further reported increased anxiety over his wife’s health and the well-being of his children and their families. He stated that the best form of stress relief was “just being able to talk to someone” and expressed appreciation for his local Veterans Center counselor. In March 2017 the Veteran related that his mood had improved to fair with his wife’s improving health. He continued to note experiencing hypervigilance and an exaggerated startle reflex. The Veteran reported in May 2017 that his mood continued to be fair and that he was enjoying the spring weather, stating he “loves” to be outside and “wear myself out during the day.” In August 2017 the Veteran stated his mood was fair but that he was bothered by the health issues both he and his wife were experiencing. His son and grandchildren came to visit for four to five days, which he enjoyed. He reported spending a lot of time with other VVA members over the summertime and dreaded wintertime due to increased depressed mood. The Veteran reiterated this sentiment in October 2017 but added that he was sleeping better and was looking forward to an upcoming family gathering. Throughout these meetings the Veteran continued to report an exaggerated startle response and hypervigilance. In January 2018, the Veteran reported that he and his wife had enjoyed a wonderful time visiting his son and stepson over Christmas. He did relate that a recent car accident had increased his PTSD and anxiety symptoms. In February 2018 he stated that he felt his mood was fair and would improve further when the weather warmed but noted increased worry over his wife’s worsening health, with her back pain limiting their activities. The Veteran conveyed in April 2018 that his mood had been “grouchy” for the past several weeks but was looking forward to his grandson coming to stay with them over the summer. In August he reported that his grandson staying with them helped him to stay active but reported frustration with the lack of improvement in his wife’s health and with a current VA claim. October 2018 found the Veteran increasingly anxious over his wife’s poor health and upset that they might not be able to visit his son over the holidays. He once again noted that winter was a difficult time for him. Records from December 2018 indicate that the Veteran’s mood was slightly depressed with flat affect. He stated he enjoyed spending time with his wife but that she seldom wants to leave their home and he would like to go places with her. He reported he was again working at the VVA Christmas tree operation. The Veteran relayed in February 2019 that he was experiencing “good days and bad days,” and had a new counselor at the Veterans Center. He reported symptoms of obsessive-compulsive disorder, which he stated had been an issue for years. He also reported that his nightmares were more frequent than in the past, denying a trigger specific trigger but stating he felt that weather played a role. The Veteran reiterated that winter is a hard time for him and that he attempts to stay busy to occupy his mind. In April 2019 the Veteran reported improved mood and credited it to visiting his son in Oklahoma where he “felt great,” despite forgetting to take his medication for several days. He continued to note hypervigilance and an exaggerated startle response at his 2018 and 2019 appointments. The Board finds that throughout this appeal, the medical and lay evidence establishes that the Veteran’s PTSD has been shown to be manifested primarily by depressed mood, irritability, hypervigilance, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, and persistent flattened affect. The frequency, severity and duration of these symptoms cause no more than occupational and social impairment with reduced reliability and productivity. The Veteran did endorse additional symptoms of obsessional rituals which interfere with routine activities at a February 2019 appointment with his VA psychologist, but this was the only time he claimed this symptom in the available records. In a clinical setting, the Veteran primarily exhibited and endorsed hypervigilance with an exaggerated startle response, situational anxiety and irritability and persistent flat affect with depression worsening in the winter months. However, he consistently denied suicidal or homicidal ideations and there is no evidence of near continuous panic and depression affecting his inability to function independently, appropriately and effectively, spatial distortion, or impaired impulse control, to include unprovoked irritability with periods of violence. The Veteran’s VA readjustment councilor noted in a February 2016 letter that the Veteran is continually depressed, rating his depression as an eight out of ten. However, there is no evidence that this depression affects his ability to function independently. In his VA psychological appointments, the Veteran related that he enjoys spending time with his wife and other veterans and greatly looks forward to seeing his extended family members, indicating he does not have difficulty establishing and maintaining effective relationships. He is shown to be able to function independently in volunteering at the Christmas tree operation in winter and the VVA year-round, as well as taking care of the house and yard. The situations that the Veteran reported as affecting his anxiety and irritability are not unprovoked and include normal troubling situations such as a car accident, his wife’s health, or the inability to see his loved ones for the holidays. There are no reports of the Veteran experiencing periods of violence due to his irritability at these situations. The expert medical opinions of the VA examiners, including one several months after his VA readjustment councilor’s report of worsening symptoms, found that the frequency, severity and duration of the Veteran’s overall PTSD symptoms resulted in 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. This opinion is consistent with records of VA psychological appointments from 2014 to 2019 that report no significant impairment of speech, orientation, affect, or thought process. In the opinion of the Board, when considering the frequency, duration and severity of the reported symptoms and the Veteran’s self-description of functioning, the Board places great probative weight on the opinion of the 2015 and 2016 VA examiners, as well as the notations of his treating psychologist, regarding his overall occupational and social impairment due to PTSD. The evidence reflects that, although the Veteran has endorsed symptoms which are considered examples for higher ratings, such as obsessional rituals which interfere with routine activities, speech intermittently illogical and near-continuous depression (albeit while still functioning independently), the Veteran’s overall occupational and functional impairment due to PTSD has resulted in no more than social and industrial impairment with reduced reliability and productivity for the entire appeal period. In so finding, the Board has considered all lay symptoms reported by the Veteran and his self-description of occupational and social impairment. However, the Board places significant probative weight on the opinion of the VA examiners who, after reviewing the claims folder, the Veteran’s description of symptoms and their own mental status examination findings, have relied upon their own psychiatric expertise and experience in evaluating the Veteran’s overall occupational and social impairment. Behavioral observations by the VA psychologists in the clinical setting similarly do not support overall impairment of the required level of severity to warrant a disability rating in excess of 50 percent. To the extent that the evidence of record documents symptoms included in the individual rating criteria for an increased 70 percent or 100 percent disability rating, the Board finds that such symptoms have not been of sufficient frequency, severity and duration to have resulted in overall impairment to the required level of severity so as to warrant an increased disability rating. Therefore, the Board finds that the Veteran’s manifested psychiatric symptoms for the period on appeal are most closely approximated by the assigned 50 percent disability rating. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for a higher initial rating for PTSD, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.