Citation Nr: 20047540 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 15-14 893A DATE: July 16, 2020 ORDER Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s PTSD was most closely characterized by 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 entitlement to a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. § 1155; 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 honorably in the United States Army from March 1966 to March 1968, including service in the Republic of Vietnam. The Veteran is a recipient of the Purple Heart. Entitlement to a disability rating in excess of 30 percent for PTSD is denied. The Veteran’s PTSD is rated in accordance with the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130, which provides the following ratings for psychiatric disabilities: A 0 percent, or noncompensable, rating is warranted for a mental condition that has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. Id. A 10 percent rating is warranted for 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 continuous medication. Id. A 30 percent rating is warranted 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). Id. 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 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. Id. When determining the appropriate disability evaluation under the general rating formula, the primary consideration of the Board of Veterans’ Appeals (Board) is a 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, 116-17 (Fed. Cir. 2013). 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. Id at 117-18. The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Vazquez-Claudio, 713 F.3d at 117; 38 C.F.R. § 4.130. By way of background, the Veteran’s claim for PTSD was originally granted in September 2008 with an initial rating assigned of 10 percent, effective April 2008. The Veteran filed a claim for increase in December 2010. In May 2011, the Veteran submitted a statement that his doctors at the VA believed that his PTSD had increased in severity; the Veteran also clarified that he was not receiving private treatment. In October 2012, the RO increased the Veteran’s rating for PTSD from 10 percent to 30 percent, effective December 2010. The Veteran disagreed with the 30 percent rating and has since perfected his appeal to the Board. The Veteran contends generally that he is entitled to a higher rating and has identified the C&P examination report from September 2019 as medical evidence that supports his claim. See August 2019 Application for Disability Compensation and Related Compensation Benefits, VA Form 21-526EZ; June 2020 Appellant’s Brief. The Veteran’s PTSD was most recently evaluated in September 2019. The examiner reported that the Veteran’s level of occupational and social impairment was best characterized as 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. The examiner identified the following symptoms associated with the Veteran’s PTSD: depressed mood, anxiety, and mild memory loss, such as forgetting names, directions or recent events. Concerning relevant mental health history, the examiner did not identify any current treatment and noted that the Veteran is not prescribed any psychiatric medication. The examiner also reported that the Veteran continues to be chronically anxious, although he has no history of suicidal thoughts or hospitalizations. The examiner found the Veteran alert and oriented to person, place, time, and situation. The Veteran’s clothing was clean, casual and age appropriate. His facial expression and eye contact were fully adequate. The examiner did find the interaction to be “rather intense,” as the Veteran’s rate, volume and inflection were greater than average. The Veteran exhibited some remote memory and concentration problems, which rendered him a marginally reliable historian. However, the examiner attributed the Veteran’s memory loss to independent causes, as opposed to PTSD. The examiner found the Veteran’s affect bright and found his mood not depressed. Concerning a support network, the examiner reported that the Veteran and his wife continue to vacation in Arizona in the winter which they greatly enjoy, and also noted that they enjoy spending as much time with children and grandchildren as possible. In the remarks section of his report, the examiner found that results of psychological testing suggest the presence of chronic and significant emotional distress. The testing also suggested that associates of the Veteran would be likely to comment about the Veteran’s over-concern about issues and events over which he has no control. The examiner found that overt signs of tension and stress such as sweaty palms, trembling hands, shortness of breath were present. The examiner found that test results also suggest that the Veteran was experiencing specific fears and anxiety relating to his traumatic Vietnam experience which continued to distress him and cause periods of anxiety. Prior to this, the Veteran was examined by VA in August 2012. The examiner reported that the Veteran’s level of occupational and social impairment was best characterized as 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. The examiner identified the following symptoms associated with the Veteran’s PTSD: depressed mood and anxiety. Concerning relevant mental health history, the examiner noted that the Veteran had first sought mental health treatment in 2010 at the advice of his primary care physician, and had undergone prolonged exposure therapy, but that the Veteran was no longer receiving mental health treatment and had not taken any psychotropic medication. Concerning social functioning, the examiner reported that the Veteran and his wife of 35 years continued to vacation in Arizona for four months of the year. The Veteran and his wife enjoyed good relationships with their children, including going to sporting events with them. The Veteran had a network of acquaintances in Arizona and a supportive church community in Illinois. In addition, the examiner reported that the Veteran rode his bicycle 30 miles each day and spent the remainder of his time working around the house. The Veteran was able to manage his mother’s affairs, as well, as she was in a nursing home at the time and depended upon the Veteran’s support. Turning next to the VA treatment records, the Board notes that the Veteran first sought treatment for his PTSD in November 2010 upon the referral of his primary care physician, following a positive screening test for PTSD. In December 2010, the Veteran met with his VA clinical psychologist for the first time, who observed that overall, the Veteran appeared to be doing fairly well, that he seemed to have a good family life with a supportive wife and children. The Veteran appeared somewhat uncertain of attending therapy, but agreed to “give it a try.” The Veteran’s mental status was alert, oriented and cooperative. His speech was of normal rate, rhythm, volume and amount. He displayed some strange mannerisms with his hands. His mood was generally euthymic, but his affect was anxious. His thought processes appeared logical and sequential. There was no evidence of hallucination and no delusional beliefs were elicited. He denied any suicidal or homicidal ideation or intent. Insight and judgment appeared to be fair. Following a vacation to Arizona, the Veteran was next seen in May 2011. His VA clinical psychologist observed that the Veteran seemed to be functioning fairly well in his life; however, his family members appeared to be becoming more and more aware of his symptoms. The Veteran’s mental status was alert, oriented and cooperative. His speech was of normal rate, rhythm, volume and amount. He was rather animated with his hands at the appointment. His mood was generally euthymic, but his affect was tearful at times. His thought processes appeared logical and sequential. There was no evidence of hallucination and no delusional beliefs were elicited. He denied any suicidal or homicidal ideation or intent. His insight and judgment appeared to be fair. In July 2011, the Veteran began a sixteen-session prolonged exposure therapy program through the VA, which included exercises and discussions with others to assist the Veteran in becoming more comfortable with confronting his PTSD. Notably, at his seventh appointment, in August 2011, the Veteran’s clinical psychologist made an assessment that the Veteran was struggling some to complete all aspects of his prolonged exposure therapy, and had stopped doing his homework because he experienced high levels of anxiety while doing it. She remarked that the Veteran’s insight could be somewhat limited at times and the result was that his avoidance was prolonging his PTSD-related symptoms. In September 2011, the Veteran’s clinical psychologist remarked that the Veteran seemed to be experiencing less anxiety when sharing his trauma story and that he reported experiencing less anxiety with some of the activities that he previously avoided; however, the Veteran and his wife both indicated they did not feel that the Veteran was improving. In November 2011, the Veteran concluded his prolonged exposure treatment. His clinical psychologist found that the Veteran had made good progress through prolonged exposure, that he seemed to be experiencing a significant decrease in PTSD-related symptoms, that he showed a significant decrease in his anxiety related to his trauma story as well as with his anxiety related to activities in his life, generally. She remarked, “overall, Veteran is doing quite well.” Notably, during this time, the Veteran’s treatment expanded beyond his experiences in Vietnam, when he began to process the emotional trauma of a daughter who had been born stillborn. The Veteran’s clinical psychologist wrote, “he has been able to reflect on a time in his life he has worked hard to ignore for many years” and “he continues to experience great grief in telling his trauma story and we were able to explore how that hurt may never completely disappear.” Following his prolonged exposure therapy treatment, during a December 2011 mental health treatment appointment, the Veteran reported that his PTSD-related symptoms were fairly well controlled at this time, that he feels he “is in a better place” now compared to one year ago, that he would like if the memories of Vietnam “just disappeared,” but he knows that is not likely to happen, and that he feels he is doing well with the loss of his daughter after having worked through that trauma. At this appointment, the Veteran and his clinical psychologist discussed continuity of care issues should the Veteran require mental health treatment, while vacationing in Arizona. As referenced in the August 2012 VA examination report, it appears that the Veteran did not return for treatment following the conclusion of his prolonged exposure therapy. In October 2013, the Veteran again sought mental health treatment from his VA clinical psychologist, following the death of his daughter, who was murdered. The Veteran’s clinical psychologist made the following assessment: “Veteran and his wife continue to grieve the tragic loss of their daughter. The grief seems to be quite complicated as she was murdered and they do not know all of the details about the incident. Additionally, they are both dealing with guilt as they contemplate how they could’ve prevented the situation.” The Veteran and his wife found comfort in the support of their church community and planned to spend the holidays together as a family. They also discussed going to Arizona for an abbreviated vacation which they both felt could be beneficial as an opportunity to “get away.” In November 2013, the Veteran’s clinical psychologist assessed the Veteran as follows: “Veteran appears to be coping fairly well with his recent loss. He and his wife seem to be supportive of one another and they have a good support network with their family and church.” A December 2013 mental status exam found the Veteran to be alert, oriented and cooperative, with speech was of normal rate, rhythm, volume and amount. His mood was generally euthymic and his affect was appropriate. His thought processes appeared logical and sequential, with no evidence of hallucinations or delusional beliefs. The Veteran denied any suicidal or homicidal intent. His insight and judgment appeared to be fair. The Veteran reported that the Christmas holiday was a sad time for his family as they continued to grieve the loss of his daughter. He stated that they were able to find some joy in the holiday, but also spent much of the time crying, missing their daughter. The entire family had been working together to finish his daughter’s house so it could be put up for sale. The Veteran reported to his clinical psychologist that he felt he was doing quite well with his grief. He stated that he continues to wonder about the details of his daughter’s death and finds it quite frustrating that no one would release information to them. As a way to cope, the Veteran had resumed riding his bicycle when the weather was nice. The Veteran and his wife decided to go to Arizona, and the Veteran stated his belief that the trip would be beneficial for him and his wife. Following his return, the Veteran again sought VA mental health treatment in July 2014. A mental status exam revealed the Veteran to be alert, oriented and cooperative. His speech was of normal rate, rhythm, volume and amount. His mood was generally euthymic and his affect was appropriate. His thought processes appeared logical and sequential, with no evidence of hallucinations and no delusional beliefs. The Veteran denied any suicidal or homicidal intent. His insight and judgment appeared to be fair. The clinical psychologist, who treated the Veteran at this time, reported that the Veteran struggled to deal with the death of his daughter, but appeared not to display characteristics of avoidance as he had previously done when dealing with trauma from Vietnam. The Veteran’s clinical psychologist found that the Veteran expressed proper concern for his wife and other family members, and that he had been able to obtain spiritual guidance from a church leader. The Veteran continued processing his grief in follow up appointments between September and November 2014. Notably, one of the Veteran’s daughters completed a project about Vietnam during this time frame, which caused the Veteran some distress. The Veteran developed coping strategies with his clinical psychologist as a way to confront this distress. These included reading a book on Vietnam, reading his daughter’s materials about Vietnam, and sitting in the center of a crowded restaurant. Following a trip to Arizona, the Veteran again returned for mental health treatment in July 2015. The Veteran’s grandchildren had wanted him to come and present information about Vietnam at their school, but he declined because of the distress it could have caused him. The Veteran reported still riding 30 miles a day on his bicycle and this seemed to be helpful for him. A mental status exam revealed the Veteran to be alert, oriented and cooperative. His speech was of a fast rate and rhythm, and a large amount. His mood was mildly anxious. His thought processes appeared logical but sometimes deviated from the topic at hand. There was no evidence of hallucinations and no delusional belief was elicited. The Veteran denied any suicidal intention or plan for harming himself. His insight and judgment appeared to be fair. Throughout the entire period on appeal, the evidence shows that the Veteran’s PTSD has manifested predominantly in depressed mood and chronic anxiety that, with the assistance of his family, he has been able to keep in check so as to not impact his overall level of functioning beyond that which is contemplated by the current 30 percent rating. Notably, at each assessment where occupational and social impairment due to PTSD was discussed, the Veteran’s physicians and examiners noted capabilities greater than that contemplated by the rating criteria for the assignment of a 50 percent or higher disability rating. While the Veteran does experience mild memory loss, the September 2019 examiner stated that such was “not connected to the diagnosis of PTSD” and that “his memory is a separate entity entirely from [PTSD] and unrelated to it.” As listed above, the symptoms generally contemplated by the next higher 50 percent rating include: 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. The Veteran simply has not exhibited these symptoms (or those associated with 70 and 100 percent ratings) at any point during the appeal period. The Veteran’s symptoms of depressed mood and anxiety fall under the examples of symptoms that are listed as consistent with a 30 percent rating. Furthermore, even if the Board were to assume that memory loss does stem from his PTSD, mild memory loss also falls under the criteria for a 30 percent rating, as well. See 38 C.F.R. § 4.130. Importantly, the Board notes that symptoms noted in the rating schedule 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In other words, symptoms comparable to those listed in the General Rating Formula could be considered in evaluating the Veteran’s extent of occupational and social impairment. Here, however, the Veteran’s mental health treatment notes indicate that the Veteran’s symptoms are not so severe as to cause occupational and social impairment with reduced reliability and productivity. The Veteran has established strong social and family support networks and actively engages in therapeutic hobbies like cycling. During the appeal period, the evidence shows that the Veteran was capable of overseeing his mother’s affairs, as she was in a nursing home. He has demonstrated the ability to maintain effective relationships with his family and friends, to include those he sees when he vacations in Arizona. The records also show that the Veteran has made considerable strides in overcoming his avoidance symptoms, following the initial 2010 referral from his primary care physician, as well as his subsequent perseverance in completing prolonged exposure therapy, under the guidance of a VA clinical psychologist. These coping mechanisms were utilized when handling the unimaginably tragic murder of his daughter, when he and his wife drew strength from their family and from their church community. Accordingly, in this case, the Board finds that the severity of the Veteran’s psychiatric symptoms are adequately contemplated by the currently-assigned 30 percent rating. The Board in no way calls into question that disabling effects of the Veteran’s PTSD exist, and have impacted his and his family’s daily life. That stated, the medical and lay evidence of record simply does not show that the Veteran’s PTSD is so severe as to cause occupational and social impairment that more closely approximates that which is contemplated by a 50 percent or higher rating. As such, the benefit sought on appeal must be denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.