Citation Nr: 20048048 Decision Date: 07/17/20 Archive Date: 07/17/20 DOCKET NO. 18-39 656 DATE: July 17, 2020 ORDER Entitlement to a rating in excess of 10 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT Throughout, the Veteran’s psychiatric disability has been manifested by 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; occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks is not shown. CONCLUSION OF LAW A rating in excess of 10 percent for PTSD is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.126, 4.130, Diagnostic Code (Code) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from January 1968 to October 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2016 Department of Veterans Affairs (VA) rating decision (that granted service connection for PTSD, rated 10 percent, effective May 26, 2016). In June 2019, the matter was remanded for additional development. The appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). At the outset, the Board finds there has been substantial compliance with the June 2019 remand directives pertaining to the matter on appeal. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Disability evaluations are determined by the application of a schedule of rating, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where the appeal is from the initial rating decision assigned with an award of service connection, 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). PTSD is rated under criteria in Code 9411 (and the general rating criteria for mental disorders). 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). 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. 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating (the maximum schedular rating) is warranted for PTSD when 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. 38 C.F.R. § 4.130. VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms listed 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). Nevertheless, 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 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Thus, while certain symptoms might be present on isolated occasions, such symptoms must produce the contemplated levels of occupational and social impairment to provide a basis for increased rating assignments in any particular period. When evaluating the level of disability of a mental disorder, the rating agency shall consider the extent of social impairment, but shall not assign an evaluation based solely on social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be assigned, the higher criteria will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). On August 2016 VA examination, PTSD with dissociative features and derealization was diagnosed. The Veteran reported he was married and has worked as a supervisor of a water department for 25 years. He planned to retire in April 2017 after 44 years of service. He reported he has to walk away from certain differences in opinion at work to regroup before returning back to the situation and resolving it. He reported he got along with his supervisees, that he has always been a quiet and secluded person, and that he attends religious services regularly. The examiner observed that the Veteran initially appeared anxious but quickly overcame those feelings and became spontaneous throughout the majority of the interview. There was no evidence of a thought disorder, psychosis, preoccupations, phobia, or paranoia of any sort. The examiner opined that the Veteran’s psychiatric symptoms (anxiety) caused 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 noted that any identifiable impairment had been only recently been noted to adversely affect his day-to-day life. The Veteran was advised to seek follow-up at a VA medical facility, but declined. In August 2016 a VA examiner noted that the Veteran continued to have vivid and intrusive recollections of various incidents that had upset him and that he cannot forget about them as he used to. In his August 2018 VA Form 9, the Veteran reported he cannot watch war movies, tolerate fireworks, or remember the names of wounded or killed veterans. He reported that the sound and smell of fireworks remind him of gunfire. On January 2020 VA PTSD examination (pursuant to the June 2019 Board remand), unspecified trauma and stressor related disorder was diagnosed. The examiner opined that the Veteran did not meet the full DSM-5 criteria for PTSD as he denied current impairment from symptoms. The Veteran reported that his symptoms had resolved, and denied being impacted by the trauma 50 years ago. He reported no change in his social history and that he retired in 2017. He indicated that he had not received any psychiatric medication or participated in mental health services in the past 3 years. The examiner did not note any behavioral concerns. The examiner opined that a mental condition has been formally diagnosed but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. The examiner opined that the Veteran’s psychiatric symptom (anxiety) may impact ability to function in an occupational environment, but that the symptoms are not severe enough to interfere with social or occupational functioning. The Board notes that the Veteran’s file does not include any VA treatment records. The June 2019 Board remand instructed development for such records (with the Veteran assisting by identifying any treatment he received). November 2019 and December 2019 VA letters to the Veteran requested him to identify all psychiatric treatment providers, and to submit authorizations for VA to obtain records from any private providers. He did not respond; it is assumed that he has not received any mental health treatment (and on January 2020 VA examination, so indicated). As noted above, while the schedular rating criteria provide examples of the types of symptoms associated with specific ratings for psychiatric disability, to warrant a specific rating the evidence must show that symptoms of the disability result in the contemplated level of functional impairment associated with the rating. See Vazquez-Claudio v. Shinseki, 713 F.3d, 112. As the Veteran’s PTSD is rated 10 percent throughout (since the effective date of the award of service connection), the question the question that must be addressed is whether at any time since May 2016, symptoms of PTSD have resulted in, at least, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (the level of impairment contemplated by the criteria for the next higher, 30 percent, rating), or approximating such level of impairment. The Board finds that the Veteran’s disorder is not shown to at any time under consideration have been manifested by symptoms productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Initially, his PTSD symptoms are not shown to have included depressed mood, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss; or any other symptoms of similar nature and severity. While he reported anxiety, it is not reported to be more than transient. More significantly is that occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, or approximating such level of impairment, is simply not shown. The August 2016 VA examination report notes that the Veteran was working full time in a responsible position (as a supervisor), maintained relationships with his wife and supervisees, tended to his own financial matters and daily living activities (without impairment reported0, and regularly participated in social activities, such as religious services. On January 2020 VA examination, he reported his symptoms have resolved and the examiner opined he no longer meets the DSM-5 criteria for PTSD. On January 2020 examination he stated that he has not received any mental health treatment (in the last three years). His own reports of impairment flowing from PTSD do not reflect that at any time it has risen to a level of (or approximating occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks). The disability picture presented by the evidence of record does not reflect at any time under consideration a level of severity greater than mild or transient symptoms which decrease work efficiency and ability to perform tasks only during periods of significant stress, or controlled by medication. Accordingly, a schedular rating for PTSD in excess of 10 percent is not warranted. The preponderance of the evidence is against this claim, and the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, 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.