Citation Nr: 21065368 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-34 297 DATE: ORDER Entitlement to an initial rating in excess of 50 percent disabling for post-traumatic stress disorder (PTSD) at any time during the appeal period is denied. FINDING OF FACT From May 31, 2012, the severity, frequency, and duration of the Veteran's PTSD symptoms does not show significant occupational and social impairment with deficiencies in most areas, including work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 percent for PTSD 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 in the United States Navy from May 1968 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 29, 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). That decision granted service connection for PTSD and assigned an initial 50 percent rating, effective May 31, 2012. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran was afforded VA examinations in April 2013 and June 2017. Both examinations were comprehensive, in-person examinations by mental health professionals. The examination reports were extensive and included a detailed rationale summarizing the medical treatment records and describing the Veteran's diagnoses, symptoms, severity, and occupational and social function impairments. The Board finds that these examinations were adequate to assess the severity of the Veteran's PTSD. Increased rating for PTSD The Veteran asserts that he is entitled to a higher rating for PTSD. In the rating decision on appeal, the RO assigned an initial 50 percent rating for PTSD, effective May 31, 2012, under DC 9411. 38 C.F.R. § 4.130 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 PTSD symptoms caused the level of impairment required for a disability rating above 50 percent at any time during the appeal period. 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. The term "total" is defined as "whole, not divided; full; complete," and "utter, absolute." See Black's Law Dictionary, 1498 (7th ed. 1999). For the reasons discussed below, the Board denies a rating above 50 percent at any time during the appeal period. An October 2012 letter from the Veteran's counselor, C.F., a licensed social worker, noted the Veteran's PTSD diagnosis, and that he struggled with stress, poor sleep, relationship and marital problems, including problems communicating with his wife. From March 2012 through July 2012, the Veteran received individual counseling at a Vet Center. The March 2012 Vet Center Intake Assessment records note symptoms of depression, anxiety, insomnia, nightmares, involuntary intrusive memories of combat trauma, flashbacks, irritability, and avoidant behaviors. He stated these symptoms prevented him from engaging in relationships, that he lived alone for 23 years after separation from the military and married later in life, and he is now having marital problems and is in marriage counseling. He reported mistrust of others interfered with his work relationships. He was diagnosed with chronic PTSD. The mental status examination showed no evidence of thought disorders, normal memory and speech. His mood was sad and anxious, and he was rigid and tense during the counseling session. There was no evidence of hallucinations or delusions. He reported suicidal ideation after military separation, including having a plan and purchasing a gun, but then decided not to go through with it. In an April 2012 counseling session, he stated that life situations had become overwhelming for him. He "firmly" denied current suicidal or homicidal ideation. Other records during that time period note the same symptoms: continued sleep problems, relationship problems with his wife, social isolation, irritability, and occasional angry outbursts, including road rage. In July 2012, he told his Vet Center counselor that he was no longer participating in his PTSD group therapy and has no interest in it due to his depression. He stated he did not like to be around people and instead liked to stay home a lot. The Veteran denied having current suicidal or homicidal ideation at his Vet Center appointments. The April 2013 VA examination report includes a diagnosis of PTSD. The examiner found that the Veteran has occupational and social impairment with an occasional decrease in work efficiency and intermittent inability to perform occupational tasks, although he is generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. This is contemplated by the lower 30 percent rating. At the examination, the Veteran reported that he had been married for 18 years and was currently in marriage counseling. He began working for UPS as a tractor/trailer driver until August 2010, when he retired after 39 years of work. He attributed his work history longevity to being allowed to work alone. The Veteran reported feeling intense fear, helplessness, horror, intrusive memories, flashbacks, nightmares, intense psychological distress, and hyper-reactivity to internal or external cues that symbolize or resembled the violent events he witnessed. He also said he made efforts to avoid reminders of the trauma, suffered diminished interest or participation in activities, feelings of detachment from others, and concentration difficulty. The examiner noted that he had depressed mood, anxiety, chronic sleep impairment, difficulty establishing and maintaining work and social relationships, difficulty adapting to stressful circumstances, including work, and suicidal ideation. Regarding suicidal ideation, the Veteran stated that it was "generally passive," that he has no plan or intent, "but does think of it at times he feels the lowest." He stated he got very angry at times but denied being violent. The Veteran said he still isolated himself and "never learned to communicate with my wife, since I was gone so many hours working". He said that once he retired, his PTSD symptoms increased, began affecting his ability to get along with others, and caused him to isolate a bit more. He has been generally able to have a satisfactory life, but stayed away from people for many years, marrying later in life and not having any children. The examiner concluded that the primary effect of PTSD has been in social areas. 2014 VAMC records indicate that the Veteran stopped private treatment and began treatment with the VA for his PTSD in March 2014. The treatment included weekly group PTSD group support meetings. The meeting notes indicate he was attentive and actively participated in the group and related social events, including off campus outings to a local restaurant in June 2016 and a visit to the Vietnam Veterans Memorial in Washington, DC in March 2016. December 2015 VA records note that the Veteran continued to attend and participate in weekly PTSD support groups and that they were beneficial to him. March and June 2016 VAMC records notes indicate the Veteran continued participation in weekly PTSD group meetings and recently went on an outing to a restaurant. The counselor noted that the Veterans appeared to find great stress relief in the trip, where they were observed talking, eating, and laughing, and that there were plans for similar events in another 4-6 weeks. The June 2017 VA examination report showed a diagnosis of PTSD and noted ongoing symptoms, including intrusive memories of deployment, cognitive distortions about war and politics, anxiety, depression, irritability, tearfulness, sleep impairment, nightmares, avoidance of news and movies that reminded him of his trauma, and guilt, and that the Veteran attended ongoing counseling to help manage his condition and symptoms. At the examination, the Veteran reported he has been married 20 years and had a mostly positive relationship with his wife. He was active in The American Legion Riders, served as treasurer of his chapter, and enjoyed volunteer work as long as it was not around crowds. After discharge from the service, he worked as a tractor/trailer driver for 39 years and he retired in August 2010. The Veteran stated he found the PTSD support group meetings very helpful. The VA examiner noted occupational and social impairment limits are reduced reliability and productivity, which is contemplated by the 50 percent criteria. August 2017 VAMC records indicate that the Veteran sought therapy due to anger outbursts at his wife, verbal screaming but no insults, threats, or physical abuse. Initial onset of PTSD symptoms was in 2010, after he retired from his job as tractor trailer driver and was diagnosed with prostate cancer and suffered side-effects of that illness and treatment. He reported that he loves to ride his motorcycle and do work around house. The mental status examination showed that his mood was calm, coherent, and stable. There is no evidence of suicidal or homicidal ideation, delusions, hallucinations, or significant symptoms of a thought or mood disorder. September 2017 VAMC records show that he reported continued anxiety, sleep and marital problems. He stated he also watched a PBS documentary about Vietnam and was upset by it. An individual therapy note indicated that the Veteran's main concern was tendency towards irritability and anger. He stated, "Sometimes I lose it." He stated that he is aware that his response is sometimes out of proportion and wants to remedy that in the future. This indicates insight into his anger symptoms. His mental status examination was normal, and he denied suicidal and homicidal ideation, delusions, and hallucinations. No symptoms of a thought or mood disorder were noted. May and December 2018 VAMC records note the Veteran's history of PTSD diagnosis. Some 2019 VAMC records show diagnosis of PTSD and symptoms including chronic anxiety and depression, marital problems, anger, isolation, intrusive thoughts, and nightmares. The Veteran's descriptions of his ongoing symptoms are credible because they are consistent with the medical treatment records made by his VA doctors and the VA examiner reports and opinions. His chronic sleep impairment is contemplated by the 30 percent criteria. His difficulty forming and maintaining work and social relationships is contemplated by the 50 percent criteria. As noted below, depression and anxiety are contemplated by the 30, 50, and 70 percent criteria, and irritability and suicidal ideation are contemplated by the 70 percent criteria. However, the overall disability picture of his PTSD is more consistent with occupational and social impairment with reduced reliability and productivity and it does not cause deficiencies in "most areas." The Veteran has consistently reported depressed mood and anxiety. However, simply because the Veteran has depressed mood and anxiety, and the 70 percent criteria contemplate a deficiency in "mood," among other areas, does not mean his PTSD rises to the 70 percent level. The 30 percent, 50 percent, and 70 percent criteria all contemplate some form of mood impairment. Here, the Veteran's depression and anxiety are best described by the 50 percent criteria. The 70 percent criteria contemplate a more severe level: "near continuous," mood disturbance that impacts ability to function independently. The Veteran's mood disturbance is not this severe. As described above, he is able to maintain good relationships with his family, do volunteer work, and function as part of The American Legion Riders, even holding an office position. There is no probative evidence that his mood disturbance has impacted his ability to function independently during the appeal period. The Veteran reported a history of occasional suicidal ideation, and suicidal ideation is contemplated by the 70 percent criteria. However, his remote history of suicidal ideation does not cause his PTSD to result in deficiencies in most areas. In March 2012, he reported a history of suicidal ideation after separation, and at his April 2013 VA examination he stated that he had suicidal ideation when he felt at his lowest. However, after that, the records show that he consistently denied suicidal and homicidal ideation. Therefore his suicidal ideation is not frequent over the course of an appeal period beginning in 2012. Additionally, his remote suicidal ideation was not severe enough to interfere with his ability to function at all and therefore did not contribute to a deficiency in any area. The Veteran also reported significant anger and irritability, including an instance of road rage and periods of verbal aggression. Impaired impulse control is contemplated by the 70 percent criteria. However, the severity contemplated by the 70 percent level is described as unprovoked irritability with periods of violence. The Veteran denied ever becoming violent while angry. Additionally, VA examiners and medical providers have not found his impulse control to be impaired. He also stated that he understood sometimes that his responses were out of proportion, supporting a finding that he has insight into his anger difficulties. His judgement has remained intact throughout the appeal period, the evidence does not show a deficiency in judgment. The evidence also does not show a deficiency in thinking. His MSEs have not noted impaired thinking. The area of school does not apply to the Veteran, as he has not attended school during the appeal period. The Veteran reported that he worked as a tractor/trailer driver for 39 years and retired, and did not attribute his retirement to PTSD. He stated that he was able to work for so long because he could work alone. However, the did not assert that while he was working, his PTSD caused a deficiency in his ability to do his job. Although his PTSD interferes with his relationships, the severity of this impairment is best described as "difficulty" with relationships, which is contemplated by the 50 percent criteria. It is not more accurately described as "inability" to form relationships, which is the severity contemplated by the 70 percent criteria. As described above, the Veteran has good relationships with his family and is able to hold the treasurer position with The American Legion Riders. This shows that even though his PTSD causes social impairment, it does not result in the inability to form or maintain relationships. The preponderance of the evidence shows that the Veteran's PTSD is more closely described as causing occupational and social impairment with reduced reliability and productivity, but not deficiencies in most areas. Therefore, the preponderance of the evidence is against this claim, and an initial rating in excess of 50 percent for PTSD is denied. 38 C.F.R. § 4.3. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kathleen M. Fiorillo, 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.