Citation Nr: 20042575 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 20-08 150 DATE: June 24, 2020 ORDER Entitlement to an initial disability rating of 50 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran’s PTSD symptoms more nearly approximated occupational and social impairment with reduced reliability and productivity, due to symptoms such as frequent panic attacks, hypervigilance, nightmares, and impaired thinking, judgment, and mood. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating of 50 percent, but no higher, for PTSD have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1966 to September 1968. This comes before the Board of Veterans’ Appeals (Board) from a December 2018 decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service connection for PTSD was established by a December 2018 rating decision, at which time a 30 percent rating was assigned, effective April 10, 2018. In multiple letters, the RO requested underlying treatment records from the Veteran’s therapist at North Bay Vet Center, but the therapist failed to provide such records instead only providing letters of support of the Veteran’s claim. See RO letters dated September 11, 2018, October 15, 2018, November 2, 2018, and November 26, 2018. The Board finds there is no further duty to assist to obtain these records. Increased Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment is not restricted to the symptoms provided in the diagnostic codes. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders. A rating of 10 percent is warranted when there is occupational and social impairment due to mild or transient symptoms with decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupation tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: a depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A rating of 50 percent 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 (retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; and difficulty establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is objective evidence demonstrating that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with his routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or 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; and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted 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; and memory loss for names of close relatives, own occupation, or own name. Id. The Board has considered the entire record, including the Veteran’s VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. 1. Entitlement to an initial rating higher than 30 percent for PTSD. The Board finds that an initial evaluation of 50 percent, but no higher, for the entire period on appeal is warranted. Throughout the entire period on appeal, the Veteran has had occupational and social impairment with reduced reliability, due to symptoms such as frequent panic attacks, hypervigilance, nightmares, and impaired thinking, judgment, and mood. For example, the Veteran’s therapist provided two letters indicating his impression of the Veteran’s symptoms based on ongoing treatment at the North Bay Vet Center since March 2018. In the first letter from November 2018, the therapist said the Veteran, “demonstrates increased difficulty in adapting to stressful circumstances, occupational and social impairment with reduced reliability and productivity, anxiety, depressed mood, chronic sleep impairment, impairment of motivation and mood, impaired mental concentration, persistent avoidance of crowds, continued intrusion of painful wartime memories, guilt, foreshortened future, impaired memory and mental focus (demonstrated as an inability to concentrate to the point that it would seem he would not be able to function well in the workplace).” The therapist describes more symptoms in his second letter from June 2019. He observed the Veteran’s flattened affect and difficulty with thinking linearly. The Veteran reported having panic attacks approximately more than six times a month. Although the VA examination reported the Veteran has mild memory loss, the therapist says his memory loss is more severe than that. The therapist also noticed the Veteran has impaired judgment and abstract thinking. The Veteran reported that his spontaneous intrusive thoughts about his PTSD triggers occur more frequently than daily. This causes him to have continuous feelings of guilt and shame. The Veteran also suffers from anger, volatility, nightmares, and negative feelings about himself. The therapist also discussed the Veteran’s social impairment. He says the Veteran’s social impairment presents itself “more at a serious level than occasional.” He has an impaired ability to sustain emotional closeness in relationships and avoids his feelings. The Veteran told the therapist, “sometimes I think I am too cold. I should have a feeling and I don’t. Sometimes I try to show compassion and find that I don’t have it.” Additionally, the therapist has frequently observed the Veteran’s response in what appears to the Veteran as unsafe, emotionally stressful, or high pressure situations. He determined that the Veteran’s “greatest challenge to functioning outside the safe environment of his home is his emotional decompensation in stressful situations. His reaction can be severe, resulting in extreme difficulty in handling feelings of conflict and confrontation, an inability to control feelings of anger and loss of mental concentration.” He further explains what appears to happen when the Veteran feels safe. He “can present as a person of common sense and reason with a sense of humor that he frequently directs toward himself. However, in situations where he feels emotional stress or pressure, he appears to lose his resiliency, must concentrate his full effort to survive the moment, and then has difficulty returning to a constructive focus.” The therapist maintained that it “is very unlikely that he would be able to engage in regular work activity or function adequately in a worklike setting for any period of time.” The therapist discussed the difference in conclusions between him and the 2018 VA examiner. He believed the Veteran tried to present his true symptoms to the examiner, but as a coping mechanism to “survive” the exam, he ended up underreporting. The Board acknowledges the Veteran’s VA examinations in October 2018 and November 2019. Both VA examinations report panic attacks that occur weekly or less often, mild memory loss, anxiety, chronic sleep impairment, hypervigilance, and disturbances in motivation and mood. They also indicate the Veteran has 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 Board resolves all reasonable doubt in favor of the Veteran and finds that the assignment of a 50 percent evaluation should be assigned throughout the entire appeal period. The evidence of record reflects an overall disability picture of occupational and social impairment with reduced reliability and productivity, and accordingly, the Board grants an initial 50 percent evaluation for the Veteran’s PTSD. The Board has also considered the Veteran’s symptoms which are not included in the rating criteria listed under 38 C.F.R. § 4.130 and whether they constitute symptoms that would be comparable in type and degree (frequency, severity, and duration) to the criteria for a 70 or 100 percent rating. See Mauerhan, 16 Vet. App. at 443; Vazquez-Claudio v. Shinseki. Though the Veteran’s symptoms have been shown to be significant and manifest with frequency, the Board, in weighing all of the evidence, does not find that these symptoms are of a comparable severity to the symptomatology required for a rating of 70 or 100 percent. The Veteran has not exhibited symptoms that more nearly approximate a 70 or 100 percent rating. The Veteran’s occupational and social impairment is not caused by suicidal ideation; obsessional rituals which interfere with his routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; or the inability to establish and maintain effective relationships. The Veteran did not report any of the above symptoms to his therapist or the VA examiner. Additionally, he has specifically denied suicidal or homicidal ideation and hallucinations during his VA examinations, and has been observed as “appropriately groomed.” Furthermore, although the Veteran has difficulties with relationships due to his impaired ability to have compassion, and avoidance of his feelings, he reports in the November 2019 VA examination that his marriage “is better now than it has been in 15 years”, and says he and his daughter “get along fine”. Although he reports having a falling out with his son, he said this is due to his wife. The Veteran also reports being very active in his church, and has a fellow veteran friend. They fished and ate breakfast together but do not fish anymore because they both have health issues. Thus, the record shows that the Veteran does not have an inability to establish and maintain relationships, nor does he have total social impairment. This is consistent with occupational and social impairment associated with a 50 percent rating, but no higher. Additionally, to the extent the Veteran’s therapist suggests that the Veteran’s symptoms render him unemployable, the Board is unpersuaded. At the 2018 VA examination, the Veteran provided his work history and reported that he worked as a general foreman until he retired in 1997. At the 2019 VA examination the Veteran reported that he was retired and had not worked since 2009. The Veteran had decades long steady employment. Moreover, the position of general foreman would include extensive supervisory and managerial duties. There is no indication that the Veteran retired on account of psychiatric disability. There is no credible persuasive indication that the Veteran does not have transferable skills to obtain gainful employment consistent with his education and prior work experience if he so chose to do so. Thus, the Board resolves reasonable doubt in favor of the Veteran and concludes that his symptoms likely more nearly approximate the criteria for a 50 percent rating, but no higher. The Board finds the Veteran is entitled to an initial rating of 50 percent for his PTSD, effective April 10, 2018. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Papacalos, Law Clerk 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.