Citation Nr: 20039975 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 16-11 354A DATE: June 11, 2020 ORDER Entitlement to an increased rating in excess of 30 percent disabling for service-connected post-traumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s PTSD results in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for a disability rating higher than 30 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to February 1977. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded by the Board in September 2018 for additional development. Specifically, to obtain all outstanding VA treatment records, Social Security Administration (SSA) records, and to obtain a VA examination. While a VA examination was scheduled, the Veteran did not attend it. The Veteran did not submit a reasoning as to why he could not attend the examination, nor did he request to reschedule it in a timely manner. Therefore, the Board will use the medical evidence of record to adjudicate the matter. 1. Entitlement to an increased rating in excess of 30 percent disabling for service-connected PTSD The Veteran is seeking a higher disability rating for his service-connected PTSD. Disability ratings are determined by comparing a veteran’s present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD is currently rated as 30 percent disabling under DC 9411 for 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is warranted for 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. Id. A 70 percent rating is warranted 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. Id. A 100 percent rating is warranted if 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; memory loss for names of close relatives, own occupation or own name. Id. When determining the appropriate disability evaluation under the general rating formula, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F. 3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be due to those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d 112. The classification outlined in the portion of VA’s Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130. The 30 percent evaluation is based, in part on findings from a June 2015 VA examination where the examiner opined that the Veteran exhibited 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. The Veteran reports being single, never marrying, and not having any children. He has a friend he sees once a week and family he sees once a week or once every two weeks. He explained how he spends his time at home writing film scripts and watching television. He reported he always had work except for short periods in the past. The examiner observed that the Veteran exhibited symptoms of depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The examiner further reported that the Veteran was oriented and appropriately dressed and groomed. The Veteran’s thought content and logic was within normal limits and the Veteran was future-oriented. The Veteran reported wondering what he has to live for but denied current suicidal or homicidal ideation and denied a history of suicide attempts. From remembering the incidents that occurred to him in service, his symptoms returned including intrusive thoughts, avoidance of thoughts and feelings related to the military sexual trauma, detachment from others, irritability, hypervigilance, and insomnia. According to the VA treatment records from February 2016, the Veteran reported suffering from depression and how his friends think he has depression. He expressed symptoms of lack of motivation, difficulty keeping up his hygiene, and difficulty sleeping. In June 2016 the Veteran reported lethargy and lack of energy. He was alert and oriented and denied suicidal or homicidal ideation. In January 2019 the Veteran admitted to feeling depressed but expressed his symptoms have significantly improved. He denied suicidal or homicidal ideation. In December 2019 the Veteran reported a recent episode of increased anxiety, depression, and agitation. He reported that his family was not a source of emotional support for him. He denied feelings of panic or feeling overwhelmed and reported that he was getting good sleep. In January 2020 he reported that his mood has improved and that he is sleeping better. Then in March 2020 he reported that his anxiety and PTSD are more of a problem than his depression and that his ongoing symptoms are irritability, hypervigilance, intrusive memories, avoidant behavior, mood changes, and anxiety. He denied insomnia or nightmares. In April 2020 he reported that he was doing fantastic, that his concentration and sleep have improved, and that he does not feel anxious. The SSA records showed that the Veteran sought social security disability benefits for his PTSD and depression, but that he was not deemed disabled for those disorders. Applying the Veteran’s psychiatric symptomatology to the rating criteria noted above, the evidence does not support the assignment of an evaluation greater than 30 percent. His symptoms of depression and chronic sleep impairment are specifically enumerated in the schedular criteria for a 30 percent rating and do not affect his ability to function independently, appropriately, and effectively. The Veteran’s relationship with his friends and family seem to be intact and he also enjoys meaningful recreational/leisure pursuits. Despite his PTSD symptoms he was able to maintain a period of prolonged employment and there are no indications of significant decreases in work efficiently due to PTSD. The Veteran does not exhibit flattened affect, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short and longterm memory, impaired judgment, impaired abstract thinking, or difficulty in establishing and maintaining effective work and social relationships. While he has had symptoms of disturbances of motivation and mood, it does not reach to the severity required for a 50 percent disability rating since the Veteran mentioned disturbance of mood only once or twice. Accordingly, the Board finds that the Veteran’s impairment due to PTSD is most consistent with a 30 percent rating and that the level of disability contemplated in DC 9411 to support the assignment of a 50 percent or rating or higher is absent. The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.