Citation Nr: A20009529 Decision Date: 05/29/20 Archive Date: 05/29/20 DOCKET NO. 191114-43643 DATE: May 29, 2020 ORDER An initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran’s psychiatric symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1985 to December 2005. This matter comes before the Board of Veterans’ Appeals on appeal from an October 2019 rating decision. See Rating Decision (October 2019). The Board received the Veteran’s VA From 10182, Decision Review Request: Board Appeal (Notice of Disagreement), in November 2019 selectin Direct Review by a Veterans Law Judge (VLJ). Entitlement to an initial rating in excess of 30 percent for PTSD. An October 2019 rating decision granted service connection for PTSD at 30 percent under 38 C.F.R. § 4.130, Diagnostic Code 941, from June 29, 2019. The Veteran appeals the initial evaluation assigned. See VA Form 10182 (November 2019). The Veteran contends that his symptoms of PTSD are sufficiently severe to warrant total rating. See VA Form 10182 (November 2019); VA Form 21-526EZ (May 2016). He detailed that he experiences bad dreams, does not like being around large crowds and stays at home quite often. See VA 21-0781, Statement in Support of Claim for PTSD (October 2019). The issue in this appeal is whether the Veteran’s PTSD symptoms caused the level of impairment required for a disability rating of 50 percent or higher. The Board concludes that the Veteran’s PTSD symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 30 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 severity, frequency, 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). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when 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 cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when 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 cause total occupational and social impairment. The June 2019 private examination from Dr. W.A., the July 2019 VA examination and the Veteran’s lay statements show that the Veteran’s PTSD was manifested by symptoms associated with a 30 percent rating (chronic sleep impairment, depressed mood, anxiety and suspiciousness) as well as some symptoms associated with a 50 percent rating (disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships) and a 70 percent rating (difficulty in adapting to stressful circumstances). He also had symptoms that are not listed with a specific rating, such as chronic fatigue, low energy, recurrent distressing dreams, marked diminished interest in participation in significant activities, persistent negative beliefs, exaggerated startle response, and problems with concentration. His symptoms of chronic fatigue and low energy are similar to depression, which is contemplated by a 30 percent rating. His symptom of distressing dreams is similar to chronic sleep impairment, which is contemplated by a 30 percent rating. His symptom of persistent negative beliefs is similar to depression, contemplated by a 30 percent rating. His symptoms of exaggerated startle response and problems with concentration are similar to anxiety, suspiciousness, and memory loss, which are symptoms contemplated by a 30 percent rating. His symptom of marked diminished interest in participation in significant activities is similar to disturbances of mood and motivation, which is associated with a 50 percent rating. Overall, the Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. Moreover, neither the lay nor the medical evidence reflects that the unlisted symptoms are productive of occupational and social impairment with reduced reliability and productively. During the appeal period, the record shows that the Veteran, with a college degree in general management, has been employed full-time as a planner and analyst for General Dynamics. Neither the lay nor the medical evidence reflects any significant work-related conflicts or impairment caused by the Veteran’s PTSD symptoms. The record reflects the Veteran’s report that his relationship with his wife is “great” and that he had volunteered with Habitat for Humanity, stopping only due to knee problems. See Disability Benefits Questionnaire (June 2019). Considering all of the Veteran’s symptoms, not just those unlisted, the Board also finds the level of impairment caused by those symptoms more closely approximates the level associated with a 30 percent rating. A June 2019 private examination report submitted by the Veteran shows that he has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. This corresponds with the schedular criteria for the assignment of a 30 percent rating. The July 2019 VA examination report shows occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. This corresponds with the schedular criteria for the assignment of a 10 percent rating. Mental status examinations at the June 2019 private examination and the July 2019 VA examination indicate that the Veteran was well-developed; well-nourished; adequately groomed; oriented to person, place and time; recent and remote memory were intact; he was anxious, cooperative, but guarded; his thought processes were logical and goal-oriented; and he presented with appropriate affect and orientation and had good judgment and insight. The Veteran denied violence and reckless behavior, as well as delusions and hallucinations or compulsive behavior, and panic attacks. He denied any problems with activities of daily living, difficulty experiencing positive emotions, increased irritability or anger. The Veteran reported residing with his wife and getting along with her. He described his relationship with his children as “great.” He stated that he speaks to them by phone once or twice per week. He shared that he keeps in contact with two friends from his time in service, with whom he talks by phone once every few months. He also had contact with one of his brothers, his mother, three nieces, but distanced himself from others in the family because they did not help his mother recover from right femur injury. He described preferring to stay at home when not working and staying busy, stating that he “finds peace” that way. Holistically considered, the evidence overall does not demonstrate the level of impairment associated with a 50 percent rating. During the appeal period, the Veteran continued to work at General Dynamics as a planner and analyst after starting there in 2010, and reported that he is able to effectively maintain a job and perform his duties well. He formerly volunteered at Habitat for Humanity, but had to stop due to his right knee. Although the Veteran reported recurrent distressing dreams, avoiding crowded locations such as restaurants and conversations with people who cannot understand his experiences, and his wife reported that he yelled in his sleep three to four times per month and was uncomfortable in closed spaces, such symptoms are contemplated by the 30 percent rating. Notably, the Veteran indicated that he has chosen not to obtain mental health treatment or counseling because he did not want ot risk losing his security clearance, despite Dr. W.A.’s recommendation. Both the lay and medical evidence are probative in this matter. However, whether a disability meets the schedular criteria for the assignment of a higher rating is a factual determination by the Board based on the complaints coupled with the medical evidence. Here, although the Veteran believes that he met the criteria for higher disability rating, his complaints and the medical findings do not meet the schedular requirements for a higher rating than assigned, as explained and discussed above. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 50 percent rating or higher. His symptoms more nearly reflect the criteria associated with and contemplated by the assigned 30 percent rating. Accordingly, a rating in excess of 30 percent is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). The Veteran may file a supplemental claim on the prescribed form with new evidence showing that his condition meets the criteria for a higher rating. See 38 C.F.R. § 3.2501. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.