Citation Nr: 20030126 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 16-37 980 DATE: April 29, 2020 ORDER Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s PTSD is not manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 2004 to October 2009. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO). In November 2018, the Board of Veterans’ Appeals (Board) issued a decision denying a disability rating in excess of 50 percent for the Veteran’s PTSD. In August 2019, the United States Court of Appeals for Veterans’ Claims (Court) issued an order based on a Joint Motion to Remand to remand the claim to the Board based on the Board’s failure to properly evaluate the Veteran’s PTSD symptoms that may correspond to a higher rating. Entitlement to a Disability Rating in Excess of 50 percent for PTSD VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Since March 31, 2016, the Veteran’s service-connected PTSD has been evaluated as 50 percent disabling under DC 9411 of the General Rating Formula for Mental Disorders. Under the applicable rating criteria, a 50 percent disability rating is warranted when there is 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 and maintaining effective work and social relationships. A 70 percent rating is assigned for 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. A 100 percent rating is assigned for 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. The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DCs. The VA must consider all symptoms of a veteran’s disorder that affect his or her occupational and social impairment. If the evidence demonstrates that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran’s capacity for adjustment during periods of remission. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. The VA must consider all of the Veteran’s symptoms and resulting functional impairment as shown by the evidence in assigning the appropriate rating and will not rely solely on the examiner’s assessment of the level of disability at the moment of examination. The Veteran’s records include evaluations based on the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), which includes Global Assessment Functioning (GAF) scores, and the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5), which does not use GAF scores. The Court has held that the use of GAF scores to assign disability ratings in instances where the DSM-5 applies, as is the case here, is inappropriate. Thus, the Board shall not discuss GAF scores below. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. The Veteran contends that the disability rating for his service-connected PTSD should be rated higher than the currently assigned 50 percent disability rating since March 31, 2016. Specifically, in a June 2016 Addendum to the Veteran’s Notice of Disagreement, the Veteran’s representative contends that the Veteran’s PTSD symptoms have a negative impact on the Veteran’s life. The Veteran’s representative also stated that the Veteran socially isolates himself, has intense nightmares and flashbacks, panic attacks, irritability, and depression. Furthermore, the Veteran’s representative stated that he only works now to provide for his wife and son and his personal hygiene suffers. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 50 percent for PTSD. The reasons follow. The preponderance of the evidence is against a finding that the Veteran’s PTSD results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, to warrant a 70 percent rating. For example, in the May 2016 VA examination report, when asked which of the following best summarized the Veteran’s level of occupational and social impairment, the examiner checked occupational and social impairment with reduced reliability and productivity, which is the criteria that falls under the 50 percent rating. While the adjudicator makes the determination of what evaluation is warranted for the service-connected PTSD, the medical examiner’s conclusion that the Veteran’s psychiatric disorder was summarized best by the criteria described under the 50 percent evaluation is evidence against a finding that the Veteran’s PTSD causes occupational and social impairment with deficiencies in most areas. While the Veteran has reported that he feels socially isolated and withdrawn from family and friends, the preponderance of the record is against such a finding. For example, the Veteran maintains relationships with his wife, to whom he has been married since 2006, and with whom he has had two children. The Veteran reported that he enjoys spending time with his son. In June 2019, the Veteran reported that his wife had been dealing with post-partum depression, and he had been supporting her in that process. In October 2019, the Veteran reported some of his current stressors included having a second child over the summer and his wife getting a new position. He reported occasional contact with his mother and sisters. He stated that he had one friend. A review of his medical records show that doctors comment that while forming relationships is difficult, he retains the ability. Additionally, during visits to the VA Mental Health Outpatient Clinic, the Veteran reported that he had a supportive family, reasons for living, and a sense of responsibility to family. These facts are evidence against a finding that the Veteran has deficiencies in family relations and that the Veteran is unable to establish and maintain effective relationships. The 50 percent rating currently assigned contemplates the Veteran’s difficulty in establishing and maintaining relationships. During the appeal period, the Veteran has been employed by Aircraft Specialties, Inc., and working on aircraft brakes and wheels. In April 2016, the Veteran reported that his concentration was poor, and he was making “stupid mistakes” at work. During the May 2016 VA examination, the Veteran stated he moved jobs from the airport to his current position because of aircraft noise and the coming and going reminded him of his military service. The Veteran stated that at his current job, there are constant loud noises that set him on edge. In August 2018, the Veteran reported that in July 2018, he had a “complete meltdown” in which he snapped at his boss and said he was going to quit. The Veteran said he thought about it and cried for four hours, as he tried to go back to work. At the time of his VA appointment, the Veteran said that things were better, and his job was the “most stressful, laid back job he has ever had outside the military.” He indicated that since working at his current job, he no longer has as many flashbacks. In June 2019, the Veteran reported that work was going well, as they had streamlined a lot of processes and decreased the level of micro-management required. He said that it made work a little easier to deal with. In October 2019, the Veteran stated he had some difficulties at work in supervising staff who assemble wheels and brakes from aircrafts and working long shifts. This is evidence in support of an occasional decrease in work efficiency and not evidence of difficulty adapting to stressful circumstances, as the Veteran is able to maintain his employment as a supervisor since 2016. A February 2016 VA treatment record shows that the Veteran had to change courses in school because of his PTSD symptoms. However, in this same record that documented the Veteran not wanting to take aviation classes because of PTSD symptoms, the examiner documented that the Veteran was seeking a letter from a VA psychiatrist so that the Veteran could get his financial aid reinstated. Thus, while the Veteran may have been uncomfortable taking an aviation class due to PTSD symptoms, the evidence shows that he still wanted to take classes. For example, at the May 2016 VA examination, the Veteran specifically reported he was continuing his education at Iowa Western Community College since the September 2013 VA examination and was nearly done with an associate degree. This is evidence against the Veteran being unable to adapt to stressful circumstances, as he successfully had taken enough courses to nearly complete an associate degree and was still taking additional classes, while still working full time. Therefore, the Board finds the preponderance of the evidence is against this being indicative of a PTSD symptom that falls under the 70 percent rating. In the May 2016 VA examination report, the examiner noted that the Veteran had a “[p]ersistent negative emotional state;” however, the evidence shows that the Veteran is not in a near-continuous state of depression, a symptom contemplated for the 70 percent disability rating. For example, in his April 2016 affidavit, the Veteran stated that he feels depressed most of the time and he can go through long periods of feeling worthless. Additionally, during the April 2016 VA MHC Clinic note, he reported that for two months, he was very depressed. Then in January 2017, the Veteran that he did not have feelings of being down, depressed, or hopeless. In May 2017, August 2018, and June 2019, he reaffirmed that he did not have feelings of hopelessness. In the June 2019 VA treatment records, the examiner described the Veteran as euthymic. In October 2019, the Veteran was described as depressed, but he specifically denied feeling hopeless. The 50 percent rating contemplates disturbances of motivation and mood, and the Veteran’s negative emotional state are aligned with that symptomatology versus the near-continuous panic/depression that falls under the 70 percent rating. The facts do not support near continuous panic. The Board acknowledges that the Veteran indicated that he had suicidal thoughts and ideation in his April 2016 affidavit, and at his April 2016 and August 2018 mental health clinic (MHC) visits. Suicidal ideation is a symptom contemplated by a 70 percent disability rating. However, aside from these notations, the record shows that the Veteran consistently denied suicidal ideation, intent, or plan. See April 2016 VA MHC clinic note; May 2017 Mental Health Outpatient Note; August 2018 Mental Health Outpatient Note; June 2019 Mental Health Outpatient Note; and October 2019 MHC Clinic Note. The facts of this case appear to be distinguishable from Bankhead v. Shulkin, 29 Vet. App. 10 (2017), in which the Court held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130). Under the unique facts of Bankhead, the claimant was noted to have had recurrent suicidal thoughts and behaviors of varying severity, frequency, and duration throughout the relevant appeal period. Here, the Veteran’s instances of suicidal ideation (passive or otherwise) during the appeal alone or when considered with other symptoms, did not cause the level of occupational and social impairment contemplated by the 70 percent disability rating. For example, the VA treatment records and VA examination reports overwhelmingly reflect that the Veteran has denied suicidal ideation. The record does not reflect symptomatology of deficiencies in most areas, particularly, work, judgment, thinking or mood such that his symptoms rise to the severity, frequency and duration of near continuous panic or depression, impaired impulse control, obsessional rituals or spatial disorientation. Based on the facts of this case, the sporadic instances of passive suicidal ideation does not more nearly approximate occupational and social impairment with deficiencies in most areas, but rather reflects a lesser degree of impairment that is contemplated by the 50 percent rating assigned. In other words, just because a claimant has an exacerbation of the disability does not mean that the overall disability picture has increased. Exacerbations of the disability are contemplated by the 50 percent rating. See 38 C.F.R. § 4.1 (the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). In numerous VA treatment records during the appeal period, the Veteran has been shown to have appropriate dress, speech, thought processes, judgment and insight, without delusion and without homicidal ideation. See April 2016 Mental Health Outpatient Note; May 2017 Mental Health Outpatient Note; August 2018 Mental Health Outpatient Note; and June 2019 Mental Health Outpatient Note. The Veteran had stated in the June 2016 affidavit that he gets aggressive when having a panic attack and that he does everything he can to remove himself from getting aggressive with other people, which is evidence against deficiencies in judgment. Accordingly, the preponderance of the evidence is against the Veteran’s PTSD being manifested by gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, 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, or symptoms of similar severity, which are symptoms that demonstrate the criteria for a 100 percent rating. This is evidence against a finding that the Veteran has total social and total occupational impairment. The preponderance of the evidence of the evidence is against finding that the Veteran exhibits intermittent inability to perform activities of daily living, a symptom contemplated under a 100 percent disability rating. The Veteran’s wife had written that, while driving, the Veteran hit a pothole in the road, which made a loud noise. She wrote the Veteran was forced to pull over and cry due to a flashback. The Veteran’s wife also described a similar incident, which occurred in a grocery store. However, in August 2018, the Veteran reported that since being on the medication Paroxetine, he had noticed improvement in his PTSD symptoms. He reported he is not as irritable anymore, does not get as paranoid around crowds, and has done better in managing his flashbacks and nightmares. Furthermore, all VA treatment records during this period on appeal note that the Veteran’s appearance, behavior, and attitude are normal, and his grooming and hygiene are either fair or good. As the Veteran has been able to manage his symptoms with the assistance of medication, the Board finds that preponderance of the evidence is against a finding of him being intermittently unable to perform activities of daily living when these instances lasted for a short period of time (the incident in the grocery store lasted 10 minutes). Therefore, the Board finds that the Veteran’s PTSD symptoms are most closely approximated by the assigned 50 percent disability rating. Importantly, the Veteran has not shown occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood; nor are his PTSD symptoms of similar severity, frequency, and duration in order to warrant an increased 70 percent disability rating. As the Board has found that the Veteran’s disability picture does not rise to the level of severity of the 70 percent rating, it follows that the Board finds that the disability picture does not rise to the level of severity of the 100 percent rating. For all the reasons laid out above, the Board finds the preponderance of evidence is against a disability rating in excess of 50 percent for PTSD since March 31, 2016. As the preponderance of the evidence is against the claim for a higher rating for PTSD, the benefit of the doubt doctrine is not for application, and the Veteran’s claim for an increased rating is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, 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.