Citation Nr: 21000235 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 14-40 395 DATE: January 4, 2021 ORDER Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with depression, not otherwise specified is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for PTSD with depression, not otherwise specified, have not been met. 38 U.S.C. §§ 1155, 5107; 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 on active duty in the United States Army from May 2003 to March 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a June 2018 travel Board hearing. A transcript of that hearing has been associated with the claims file. This matter was last before the Board in November 2018, at which time it was remanded for further development. The Board finds that there has been substantial compliance with its remand directives and that it may now proceed with a decision. See, Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an initial disability rating in excess of 30 percent for PTSD with depression, not otherwise specified. The Veteran contends that he is entitled to an initial disability rating in excess of 30 percent for his PTSD with depression, not otherwise specified. Under the General Formula for Mental Disorders (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). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 30 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. An April 9, 2012 VA treatment record notes the Veteran reported that while he had not had many nightmares recently, he was "concerned about them increasing." It was further noted that he was planning to start school, had friends, played sports and went to the movies. The Veteran reported good energy, okay concentration and denied irritability or feeling hopeless. Some exaggerated startle was noted. The Veteran denied suicidal and homicidal ideations. The Veteran was afforded a VA examination in April 2012. It was noted that the Veteran was well-dressed and groomed and fully oriented in all spheres. He denied any suicidal or homicidal ideation. The Veteran reported experiencing nightmares, intrusive thoughts and recollections, hypervigilance, anxiety and avoidance. He further reported feeling "mildly cut off from others" at times, mild loss of interest from previously enjoyable activities, some limitations in emotional responses to trauma and episodic periods of irritability. Diagnoses of PTSD and depression not otherwise specified were noted. An August 3, 2012 VA treatment record notes the Veteran has no depression, no suicidal thoughts, no anxiety and no delusions. An August 20, 2012 notes the Veteran "has some PTSD symptoms that are ongoing, but he feels are reasonably controlled/managed." It was further noted that the Veteran was not interested in mental health care. The Veteran reported PTSD symptoms that manifest in sleep. "[N]ot as much hypervigilance or reexperiencing during the day" was noted. An October 30, 2013 VA treatment record notes the Veteran denied depression and anxiety. It was noted that the Veteran's PTSD had "been stable until 4 months ago when he had a nightmare", and that the Veteran declined a referral to mental health. An August 13, 2014 VA treatment record notes the Veteran was "negative for depressive symptoms or suicidal ideations." A December 11, 2014 VA mental health initial evaluation notes the Veteran demonstrated symptoms of social avoidance, easily startled, always on alert, social isolation, anger in traffic, waking too early and nightmares. A February 6, 2015 initial evaluation for Vocational Rehabilitation and Employment (VRE) purposes notes the Veteran "has a diagnosis of PTSD which manifests as occasional nightmares and hypervigilance." A March 16, 2015 VA treatment record notes the Veteran reported having "few nightmares" and denied startle and anxiety. An April 28, 2015 VRE record notes the Veteran requested a letter stating that his "PTSD is no longer adversely affecting him" so that he could purchase a hunting rifle. A June 6, 2015 VRE record notes the Veteran was admitted to Tripler Army Medical Center for psychiatric problems. A June 13, 2015 private treatment record from Moloka'i General Hospital notes the Veteran was brought to the hospital by police due to his having auditory hallucinations for the prior 2 days. No suicidal or homicidal ideations were noted, and he was released after being given valium meeting with a crisis worker. A June 17, 2015 VA treatment record notes the Veteran reported that 5 days prior he was sleeping when he "thought he heard an argument, a scuffle and a "weapon rack"", leading to his calling 911. He further reported again hearing a weapon rack and hearing a voice saying "you're going to leave here in a hearse" the next day, leading to his calling 911 again. A June 24, 2015 VA treatment record notes the Veteran reported that he called the police as he thought his uncle was threatening him with a weapon. It was noted that the Veteran had been let go from his part time job at the post office due to his medical appointments. A July 30, 2015 VA treatment record noted that "some depression persists". Some audio/visual hallucinations with flashbacks were noted, as well as some "paranoia due to hyper vigilance". It was also noted that the Veteran's judgment becomes impaired if he becomes too angry or anxious. An August 13, 2015 VA treatment record notes the Veteran had a recent audio hallucination of "gun sounds." The Veteran reported sleeping 7 to 9 hours per night, but was still having intrusive thoughts. An October 8, 2015 VA treatment record notes the Veteran reported continuing hypervigilance, nightmares, intrusive thoughts and paranoia, but stated that he was coping better. He further reported that he was able to adequately concentrate for school. Some audio/visual hallucinations with flashbacks were noted, as well as some "paranoia due to hyper vigilance". It was also noted that the Veteran's judgment becomes impaired if he becomes too angry or anxious. In an April 2016 statement in support of claim, the Veteran asserted that he can only handle going to school part time, has motivation problems and sometimes cannot leave his house. He further asserted having problems with short term memory. A July 14, 2016 VA treatment record notes the Veteran reported no symptoms of depression. An October 28, 2016 VA treatment record notes the Veteran reported increased anxiety in social functioning, but also having close relationships with friends and family. He reported sleeping 8 to 10 hours per night and having a nightmare 6 weeks prior. Mild anxiety was noted. His memory was noted as being grossly intact. A diagnosis of chronic PTSD was noted. The Veteran was afforded a VA PTSD examination in October 2016. It was noted that Veteran has no mental disorder diagnosis. The Veteran reported having "a lot of friends" and spending time with them daily. He reported previous work as a car salesman and then a correctional officer before returning to school to obtain a business degree. He further reported getting along well with his coworkers and supervisors and denied occupational impairment. He denied suicidal ideation. Chronic sleep impairment was noted. An August 4, 2017 VA treatment record notes the Veteran reported "noticing that [his] short term memory isn't that good" and that he "forget[s] stuff." He elaborated that regarding school he "ha[s] no problem in the classroom but when [he] [has] to take a test, [he] can't seem to remember." He further reported anxiety, particularly around crowds. An April 6, 2018 VA treatment record notes the Veteran reported concern regarding his declining grades over the past several semesters. He denied symptoms of depression and stated that while he still has some anxiety, it does not get out of control. He denied panic attacks. It was noted that the Veteran "may possibly have underlying depressive symptoms which may be contributing to focus and concentration with school". A March 8, 2019 VA treatment record notes the Veteran denied feeling depressed, overly anxious or symptoms related to PTSD. The Veteran was afforded a VA PTSD examination in October 2020. It was noted that the Veteran does not meet the full criteria for PTSD and that his depression has resolved. A diagnosis of stressor related trauma disorder was noted, as was 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. It was noted that the Veteran had restarted college. The Veteran reported having bad dreams related to the military in the prior 2 months and was seeing a VA counselor every 2 months. Symptoms of anxiety, mid memory loss and difficulty in establishing and maintaining effective work and social relationships were noted. Here, the evidence of record shows that the Veteran’s PTSD with depression, not otherwise specified, has been manifest by anxiety, mid memory loss and difficulty in establishing and maintaining effective work and social relationships. Further, the Veteran has asserted that he avoids crowds. The Board acknowledges that the Veteran had an episode of audiovisual hallucination in June 2015. However, the episode appears to have been transitory, as the record since then has not documented, nor has the Veteran reported, further incidences of hallucinations. Further, the episode did not result in involuntary hospitalization, rather the Veteran was given a valium and released. The Board further acknowledges the notation in October 2015 that the Veteran’s judgment can become impaired if he becomes too angry or anxious. However, the record since then also demonstrates that his judgment has routinely been characterized as either being good or adequate. The Board finds that these symptoms were, at most, transitory, and that the Veteran has not exhibited symptoms of such type, severity, and frequency as to more closely approximate a disability rating of 50 percent for his service-connected PTSD with depression, not otherwise specified. See, Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. See 38 C.F.R. § 4.126. 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 required for a 50 percent rating. The criteria for a 50 percent or higher rating are not met and the appeal must be denied. (Continued on the next page)   Neither the Veteran nor his/her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See, Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.