Citation Nr: 20021404 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 20-04 466 DATE: March 25, 2020 ORDER Entitlement to an 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 Veteran served on active duty from December 1990 to May 1991 and from January 2003 to April 2004. This case originally came before the Board of Veterans’ Appeals (the Board) on appeal from a November 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an evaluation higher than 50 percent for PTSD 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. In August 2018, the Veteran filed a claim for an increased evaluation of his service-connected PTSD. Turning to the facts of the case, in an August 2018 statement, G.E., of Piedmont Psychiatric Associates, indicated that the Veteran is being treated for PTSD. The Veteran experienced hypervigilance, short-lived relationships, bouts of anger, difficulty with decision making, and sleep disturbance. There are times he recalls horrific events in the form of flashbacks reminding him of past dangers evoking fears of imminent death and injury. It is not uncommon for the Veteran to experience symptoms of short-term memory loss, difficulty in decision making, short lived relationships, anxiety and depression. These problems have had a negative impact on his life affecting his ability to be a loving father and husband. His diagnosis should be considered severe. VA treatment records reveal at an August 2018 visit it was noted he is seeing Piedmont Psychiatric for management of his PTSD. At an October 2018 visit he was oriented to person, place and time, and his mood and affect were normal. At a September 2019 visit, he was noted as being anxious and depressed, and that his medication works well in treating his PTSD. He had no reports of suicidal or homicidal ideation. At a December 2019 visit, he was noted to be pleasant, and was alert and oriented to person, time, and place. In November 2018, the Veteran underwent a VA examination. The examiner opined that the Veteran has occupational and social impairment with reduced reliability and productivity. He lives with his wife of 27 years, and has two children that no longer live in the home. He has relationships with his family members. He takes medication to treat his condition. He reported a history of alcohol abuse until a few years ago. He currently drinks beer three nights per week. He denied any other substances or tobacco products. Symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. On observation, he was calm and cooperative. He appeared anxious. He was logical and goal directed. His speech was normal in rate volume and tone. He denied suicidal or homicidal ideation or any psychotic symptoms. He reported panic symptoms at work, and indicated he would retire early, the following month. He reported visits to the ER for panic attacks in 2005. He reported his medication combination is helpful, but he still has significant symptoms. He reported nightmares one to two times per week. He has safety and security rituals, and likes to have a weapon nearby. He works for ICE and is worried about people he has incarcerated in the past and them being released. The political climate also is stressful for him. He reported losing his train of thought in conversation. He reported impulsive anger that caused him problems and road rage; however, with medication this has lessened. 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. As for memory, he was noted to have mild memory loss. His symptoms included: depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. There are no reports of suicidal or homicidal ideation during the period on appeal. On examination in 2018, he reported losing his train of thought. Otherwise, there has been no indication of impaired judgment, thought processes, or communication, nor has he endorsed delusions or hallucinations. As for obsessional rituals, the Veteran reported having nightly safety rituals. Though he reported safety rituals, throughout the period on appeal, there was no evidence of speech intermittently illogical or obscure, spatial disorientation, or impaired thought processes. Taking into account the type, severity, duration, and frequency of these manifestations, the Veteran did 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 for over 27 years and has two children, with whom he reported maintaining a relationship. G.E., indicated he has short lived relationships and has bouts of anger; however, he has maintained a relationship with his wife and children. This evidence indicates the Veteran is capable of maintaining 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 was employed and reported retiring in 2018 instead of the planned 2020 as a result of his panic related to working for ICE. Although the Veteran’s PTSD symptoms have impacted his employment, the probative evidence shows the Veteran did in fact continue to work until 2018. Recently, he was found to have occupational and social impairment with reduced reliability and productivity. 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 his competent lay testimony, the record does not show the Veteran manifested symptoms that equal or more nearly approximate the criteria for a 70 percent rating. 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. (Continued on the next page)   Therefore, the nature, frequency, duration, and severity of the Veteran’s symptoms as they specifically relate to his psychiatric diagnosis warrant no more than a 50 percent schedular rating. Accordingly, entitlement to the next higher evaluation of 70 percent is not warranted. 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.