Citation Nr: 20050101 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 16-25 155 DATE: July 28, 2020 ORDER Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran's PTSD is productive of 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 an initial rating in excess of 30 percent for PTSD from June 18, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1966 to March 1969, including in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, that granted service connection for PTSD and assigned a 30 percent rating from June 18, 2014. In an October 2017 decision issued by a Veterans Law Judge other than the undersigned, the Board, in part, denied entitlement to a rating in excess of 30 percent for the service-connected PTSD. The Veteran appealed the October 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent June 2018 order, which incorporated the parties’ June 2018 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board’s October 2017 decision denying an increased rating for PTSD. In December 2018, the Board remanded the issue for additional development. The Board notes the October 2017 Board decision also remanded entitlement to service connection for thyroid cancer, a skin disability, and a bilateral foot disability, but the Agency of Original Jurisdiction (AOJ) granted those claims before they returned to the Board, and they are no longer on appeal. Beyond the above, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA and has been receiving a 100 percent disability from June 18, 2014. Entitlement to an initial rating in excess of 30 percent for PTSD. The Veteran contends that his service-connected PTSD meets the criteria for an initial rating in excess of 30 percent. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s PTSD is currently assigned a 30 percent under 38 C.F.R. § 4.130, Diagnostic Code 9411, which applies the General Rating Formula for Mental Disorders (General Formula) and provides, in pertinent part, the following criteria for evaluating PTSD: A 30 percent rating is warranted for symptoms resulting in 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted for symptoms resulting in 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 symptoms resulting in 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. Id. A 100 percent rating is warranted for symptoms resulting in 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 name. Id. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Analysis should not be limited to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the 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). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Initially, the Board notes the parties agreed in the June 2018 JMPR that the March 2015 VA examination appeared to be inconsistent with the applicable Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5), because the examiner assigned a global assessment of functioning (GAF) score and multi-axial documentation of diagnoses, factors that had been kept out of the DSM-5. The Board’s December 2018 remand directed the AOJ to provide the Veteran an examination consistent with DSM-5, It is important for the Veteran to understand that the JMR did not otherwise indicate the March 2015 examiner’s findings regarding the PTSD symptoms and their severity were inadequate for rating purposes. For example, the Veteran has not argued the March 2015 examiner misrepresented his symptoms. Accordingly, the Board will not rely on the examiner’s assigned GAF score in any way, but finds the examination is otherwise provides some evidence in this case that the Board may consider. See Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). As will be explained in more detail below, the Board concludes that the Veteran’s PTSD symptoms most closely approximated the symptoms and level of impairment associated with a 30 percent rating during the period on appeal. Therefore, the criteria for a rating in excess of 30 percent are not met at any time during the pendency of the appeal. In this regard, March 2015 and May 2019 VA PTSD examination reports and the Veteran’s own statements show his PTSD symptoms include a depressed mood, anxiety, suspiciousness, experiencing panic attacks weekly or less often, chronic sleep impairment, and mild memory loss, such as forgetting names, which are symptoms associated with a 30 percent rating. He also experienced suicidal ideation, disturbances of motivation and mood; hypervigilance; irritability; an inability to be around crowds; and feelings of guilt, hopelessness, worthlessness, emotional numbness, and detachment. Despite these symptoms, some of which are associated with higher ratings, the record shows the Veteran was generally functioning satisfactorily, with routine behavior, self-care, and conversation, during the period on appeal. Even though the March 2015 examiner noted the Veteran had fully retired in 2014 and did not make eye contact during their conversation, the May 2019 examiner noted the Veteran informed him that he had retired from being a school administrator in 2014, but had owned and operated multiple Dunkin Donuts franchises since. He reported he stopped actively running the business about one year earlier because he felt burned-out. While he reported not remembering employees’ names and said his son, and sometimes a customer, would give him a hard time for not smiling or looking friendly, he told the examiner he enjoyed running the stores and worked behind the counter. The examiner noted the Veteran’s business success showed he was able to interact with the general public, maintain a consistent schedule, and utilize his administrative skills. He also told both examiners he had close relationships with his mother, wife of 40 years, children, and two friends. At this point it is important to note that nothing above suggests that the Veteran is not having problems with his PTSD. A 30% rating will cause the Veteran many problems, the only question is the degree based on the standards above, nothing more. Both VA examiners found that the Veteran was fully oriented, appropriately dressed, and had logical and goal-oriented thought processes. His speech tone and rate were within normal limits; his memory and concertation were intact despite reports of some memory difficulties; and his judgment was normal. There were no indications of hallucinations or delusions. The May 2019 examiner described the Veteran as cooperative with a mood appropriate for the situation. His mood was euthymic, and his affect was congruent with his mood and broad in range. Notably, both examiners also opined that the level of occupational and social impairment caused by the Veteran’s PTSD was best summarized by the level of impairment associated with a 10 percent rating—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—based on their examinations of the Veteran and review of the claims file. The May 2019 examiner noted that the Veteran had in many ways “purposely created a life that is busy and full of distractions so that there is little room as possible for intrusive thoughts related to his trauma.” In a September 2017 appellate brief, the Veteran’s representative argued the Veteran’s symptoms displayed during the March 2015 examination, specifically long-term memory impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, warranted a 50 percent rating. In an October 2019 appellate brief, the representative asserted the symptoms displayed during the May 2019 examination, especially suicidal ideation, warrant a 70 percent rating. The representative also argued the Veteran’s turning over of the vast of majority of work to his son because he felt burned-out suggests he is no longer able to work due to the service-connected PTSD, constituting occupational and social impairment with deficiencies in most areas. The examiner theorized the Veteran’s suicidal ideation “will have a far more pronounced effect on his disability picture” as compared to when he was working and reported anxiety and panic attacks that occurred weekly or less often. Despite the representative’s arguments and the Veteran’s contention that an increased rating is warranted, the Board finds the evidence weighs greatly against a finding that the Veteran’s PTSD meets the criteria for a 50 percent or higher schedular rating. While the Veteran did experience symptoms contemplated by 50 and 70 percent ratings, including suicidal ideation and disturbances of motivation and mood, the evidence does not demonstrate an overall level of impairment associated with those ratings. While the representative argued the Veteran’s turning over management of his business to his son suggests he is no longer able to work due to his PTSD, there’s no indication that the PTSD is what caused him to feel-“burned out”. The medical evidence also does not suggest the PTSD actually caused long-term memory impairment or difficulty in establishing and maintaining effective work and social relationships. The Veteran reported his short-term memory was better than his long-term memory and that he forgot his employees’ names, but both examiners found his memory to be intact. The Veteran also did not indicate he had difficulty in maintaining his work relationships beyond forgetting employee’s names and getting a hard time for not smiling or looking friendly. The problems the Veteran cites, overall, are fully considered within the 30% rating. In addition, while the representative theorized the Veteran’s PTSD will increase in severity now that he’s stopped working, the Board is focused on the severity of the Veteran’s PTSD from June 18, 2014, to the present and does not assign prospective ratings. In this regard, it is again important to note that the Veteran already has a 100% rating and has had it for about six years. The Board has not overlooked the severity of the Veteran’s reported suicidal ideation, which is a symptom associated with a 70 percent rating and may cause occupational and social impairment on its own. Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). However, the presence or absence of specific symptoms that correspond to a particular rating, is not necessarily dispositive. Mauerhan, 16 Vet. App. at 442. The Board cannot overlook the remarkable accomplishments the Veteran has made over the course of his working career, which the Board has reviewed in detail, notwithstanding the problems he has had with PTSD. In that regard, the Board must consider the actual effects of the Veteran’s suicidal ideation on his occupational and social situation to determine the severity of that symptom. Bankhead, 29 Vet. App. at 21. The Board finds the severity and frequency of the described suicidal ideation did not impact the Veteran’s occupational and social situation to the extent required to warrant a rating in excess of 30 percent. He denied having suicidal thoughts during the March 2015 examination, but told the May 2019 examiner he experienced suicidal ideation during distressing emotional dysregulation episodes that lasted for several hours and occurred approximately four to six times in the prior year. Notably, the May 2019 examiner opined the PTSD would have a limited impact on the Veteran’s ability to function in an occupational environment despite the reported suicidal ideation. And as described above, the record shows the Veteran was generally functioning satisfactorily, with routine behavior, self-care, and conversation, during the period on appeal. In fact, it is important for the Veteran to understand that not all evidence in this case supports the 30% rating, let alone a higher rating. 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 that warrants a 50 percent, or higher, rating. The criteria for a rating in excess of 30 percent are not met, and the appeal must be denied. The Board emphasizes that this finding does not diminish the Veteran’s reports regarding the severity of his PTSD in any way. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William A. Skowronski, 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.