Citation Nr: 21065639 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-61 697 DATE: October 26, 2021 ORDER Entitlement to an initial evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) from March 15, 2016 to July 21, 2019 is denied. FINDING OF FACT For the period from March 15, 2016 to July 21, 2019, the Veteran's PTSD more nearly approximated symptoms productive of 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) due to such symptoms as depression and anxiety. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent from March 15, 2016 to July 22, 2019, for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 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 Air Force from June 1998 to July 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In pertinent part, a September 2020 Board decision denied service connection for an initial evaluation in excess of 30 percent for service-connected PTSD from March 15, 2016 to July 21, 2019. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted the parties' Joint Motion for Remand (JMR), vacated the pertinent portion of the September 2020 Board decision, and remanded the issue back to the Board for further adjudication in compliance with the Order. 1. Entitlement to an Initial Evaluation, in excess of 30 percent, for the Service-Connected PTSD from March 15, 2016 to July 22, 2019, is Denied. The Veteran contends that an initial evaluation in excess of 30 percent is warranted from March 15, 2016 to July 21, 2019, for service-connected PTSD. After review of all lay and medical evidence of record, including: VA treatment records, VA examinations, the Veteran's lay statements (including the August 2018 affidavit), VA Conational Rehabilitation Records, and a January 2020 private examination, the Board finds the Veteran's service-connected PTSD was manifested by symptoms that more closely approximate the 30 percent rating criteria (depression, anxiety, and panic attacks) for the period on appeal. As such, entitlement to an increased initial evaluation in excess of 30 percent for the service-connected PTSD for the period of March 2016 to July 2019 is not warranted. 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 symptoms associated with the service-connected caused the level of impairment required for a disability rating of 50 percent or higher. After review of all of the lay and medical evidence, including the August 2018 affidavit by the Veteran, 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 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. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). Additionally, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). In evaluating psychiatric disorders, the Board is mindful that the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only 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). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Facts and Procedural History In March 2016, the Veteran filed a claim for service connection for posttraumatic stress disorder. In August 2016, the Veteran underwent a VA examination to determine the nature and etiology of any mental health disabilities. During the examination, the Veteran reported continued struggle with symptoms of anxiety and depression, mood swings, and panic attacks every few months. The Veteran further reported being in a relationship that was going great and being socially active with a group of friends. The Veteran also stated his emotions could be up and down and that sometimes he would cry but denied any problems getting along with others and no difficulties in activities of daily living. The VA examiner determined that the Veteran met full DSM-5 diagnostic criteria for other specified trauma-and stressor-related disorder stemming from in-service harassment and persecution. On examination, the Veteran was appropriately groomed, casually dressed, exhibited a normal rate of speech, mood was dysphoric, thought process was coherent, logical, and goal oriented. The Veteran was found to be intact to person, place, time, and situation. Insight, judgement, and impulse control appeared intact, and the Veteran denied any suicidal or homicidal ideations. The VA examiner indicated the Veteran's other specified trauma-and stressor-related disorder resulted in 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. In September 2016, the RO granted service connection for an other specified trauma-and stressor-related disorder, evaluated at 30 percent disabling, effective March 15, 2016. The Veteran filed a timely notice of disagreement and this appeal followed. In an August 3, 2018, the Veteran submitted an affidavit describing symptoms of the service-connected other specified trauma-and stressor-related disorder. The Veteran reported severe depression that can last from a few minutes to a few hours ten to fifteen times per month with suicidal thoughts approximately once per month. The Veteran also reported anxiety with difficulty going into public places, obsessive tendencies such as checking locks on doors and enduring appliances are turned off, difficulty remaining close relationships, irritability that resulted in almost daily verbal alterations and difficulties when alone. Finally, the Veteran reported panic attacks two to three times per month, isolation, debilitating daily flashbacks. The Veteran then stated he was in a near continuous state of depression and panic. The Veteran has received mental health treatment through the VA during the period on appeal. In an October 2016 nursing intake note, the Veteran endorsed nightmares, avoidance, and hypervigilance during a PTSD screening. A medical doctor reviewed the PTSD screen and offered further intervention which the Veteran denied. An August 2018 mental health diagnostic study found moderately severe depression based on self-reported answers. During an accompanying examination with a VA social worker, the Veteran endorsed hypervigilance, hyperarousal, avoidance, and emotional detachment and numbing. On August 28, 2018, the Veteran took a self-reported mental health diagnostic study. He indicated that during the past 30 days he had trouble falling asleep three days, felt depressed, anxious, angry, or very upset 8 days, and that he had been slightly bothered by arguments or problems getting along with family members or friends. During an August 29, 2018 psychiatric appointment the Veteran indicated that he had been working as a bartender since July 2016 and left in February 2018 because the store closed but indicated that his goal was to start culinary school. The Veteran indicated he felt depressed but was motivated, had anxiety where he worried about things most of the day, was not hopeless or helpless, and had begun to enjoy activities such as food, socializing, and music. He denied any current suicidal and homicidal ideation, hallucinations, or paranoia. A September 24, 2018 chiropractic note indicated the Veteran had just begun culinary school for a 9-month course. On examination, the Veteran had good hygiene, was appropriately dressed, his mood was sad, speech was normal volume, rate, and tone, and responses were linear and goal directed. The Veteran endorsed alcohol consumption but indicated that he had not had any negative medical, social, legal, interpersonal, or financial consequences from its use. A September 2018 chiropractic note indicates the Veteran had just begun culinary school four days a week. In October 2018, the Veteran underwent VA vocational rehabilitation counseling. He indicated that the held a position from July 2016-February 2018 that he left because the restaurant closed. He further indicated that he was currently enrolled in culinary school. In a January 2019 special report of training, the Veteran indicated he was doing well in training with no concerns. The Veteran reported his nonservice connected back gave him a lot of issues. An October 2019 mental health note indicates the Veteran left culinary school because he hurt his nonservice connected back. In a September 2019 correspondence, the Veteran's representative indicated that a 70 percent evaluation should be assigned for the service-connected other specified trauma-and stressor-related disorder because a July 2019 examination supported such a finding. The Board notes that an October 2019 rating decision granted an increased evaluation to 70 percent, effective July 22, 2019, the date of the Veteran's examination. In January 2020, the Veteran underwent a private psychological evaluation. Pertinent to this appeal, the private examiner reviewed and commented on the September 2016 VA examination and August 2018 affidavit. After review of the September 2016 VA examination, the private psychologist stated that given the narrative report, it was not clear why near continuous panic or depression affecting the ability to function independently, appropriately, or effectively and difficulty adapting to stressful circumstances, including work or a worklike setting were not checked on the examination for indicating their presence. The private psychologist indicated that in his opinion those symptoms should have been checked and that the narrative did not accurately reflect the symptoms. The private examiner then recounted the August 2018 affidavit without commentary. As previously mentioned, a September 2020 Board decision denied an initial evaluation in excess of 30 percent, from March 2016 to July 2019, for service-connected other specified trauma-and stressor-related disorder. The pertinent portion of the September 2020 Board decision was vacated and remanded by a May 2021 JMR and accompanying Clerk's Order. Discussion To begin, the Board again notes that the rating of psychiatric disorders is ultimately based upon their resultant level of occupational and social impairment. 38 C.F.R. § 4.130; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (2013). The evaluation, however, is symptom-driven, meaning that the symptomatology should be the fact-finder's primary focus in determining the level of occupational and social impairment. Vazquez-Claudio, 713 F.3d at 116-17. This includes consideration of the frequency, severity, and duration of those symptoms. 38 C.F.R. § 4.126(a); Id., 713 F.3d at 117. Significantly, however, the symptoms enumerated in the rating criteria are merely examples of those that would produce such level of impairment; they are not exhaustive, and VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Id., 713 F.3d at 115; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the Board finds that the Veteran suffers from symptoms of similar severity, frequency, and duration that cause occupational and social impairment equivalent to that which would be produced by the specific symptoms enumerated in the rating criteria, then the appropriate equivalent rating will be assigned. 38 C.F.R. § 4.21; Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Turning to the evidence, for the period on appeal (March 15, 2016 to July 21, 2019), the most probative evidence in the record before the Board includes the August 2016 VA examination, VA treatment records, the August 2018 affidavit, VA vocational rehabilitation records, and a January 2020 private psychologist's examination that provides assessments of the period on appeal. The Board notes in both the JMR and an August 2021 submission from the Veteran's representative that particular attention was placed on the August 2018 affidavit, and while the Board considered the record as a whole, a thorough review of that document was undertaken and extensive discussion of it is included below. Next, after evaluating the evidence in light of the rating criteria listed above the Board finds that it reflects that throughout the appeal period, the Veteran's PTSD symptoms do not demonstrate 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; or disturbances of motivation and mood. 38 C.F.R. § 4.130. To be sure, the Board finds the record, including the lay and medical evidence do not show the Veteran's PTSD were of the frequency, severity, or duration, to cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board will first address occupational impairment caused by the Veteran's service-connected PTSD during the appeal period. Review of the record indicates that between March 15, 2016 and July 21, 2019 the Veteran was employed as a baker, bartender, server, and was a student during the appeal period. The Veteran indicated that he left the position as a baker for a new job and the position as a bartender because the restaurant closed. Further, based on the Veteran's VA Form 21-8940, it appears he left the position as a server to fulfil requirements of a culinary certificate where he completed 180 hours of externship during that period. Of note, the Veteran stated that "[O]nce my certificate was completed on July 10, 2019, Axis hired me directly." See VA Form 21-8940 and accompanying statement, March 30, 2020. The Board notes multiple reports from the Veteran that a nonservice-connected back disability impacted employment but finds that based on the record, the Veteran's lay statements, and the medical evidence for the appeal period that the symptoms of the Veteran's service-connected PTSD were not of the frequency or severity to result in occupational and social impairment with reduced reliability and productivity warranting a higher evaluation. The Board notes the argument set forth in the August 2021 submission, inter alia, that the Veteran's reports of near continuous depression would lead to deficiencies in most areas. However, the record does not support the finding that near-continuous depression, or any other symptoms of the service-connected PTSD resulted in occupational impairment warranting a higher evaluation. To be sure, while the Veteran did change positions during the appeal period, forms completed by the Veteran indicate that it was not because of the service-connected PTSD. The Board is in no way creating a standard that a Veteran must leave a position because of the service-connected disability to warrant a higher evaluation, however, when the Veteran specifically indicates a reason other than the service-connected disability it is probative to an inquiry of the occupational impact of the PTSD. Next, the Board will address social impairment caused by the Veteran's service-connected PTSD during the appeal period. As a reminder, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). Review of the record indicates that between March 15, 2016 and July 21, 2019 the Veteran was in a relationship and had varying levels of socialization throughout the appeal period. For example, in the August 2018 affidavit the Veteran stated he had verbal altercations nearly every day and had difficulty remaining in close relationships. Then, in treatment notes from August 2018 he indicated that he was slightly bothered by arguments or problems getting along with family members or friends, had become very upset 8 days out of the last 30, and had begun to enjoy activities such as food, socializing, and music. The Board can only weigh the Veteran's reports of the social impacts of the PTSD and based on his reports, the evidence during the appeal period does not show PTSD symptoms of the frequency, severity, or durations to result in social impairment with reduced reliability and productivity warranting a higher evaluation or deficiencies in most areas. The Board carefully considered the affidavit but finds it has slightly less probative value given that it conflicts with other evidence of record. Turning, to the symptoms the Veteran reported during the appeal period, which include near-continuous depression, impaired impulse control, and panic attacks that occurred two to three times per month, and suicidal ideation, the Board finds they were not of the frequency, severity, or duration, to warrant a higher evaluation. Again, the Board has thoroughly reviewed the August 2018 affidavit and accompanying arguments outlined in the August 2021 argument submitted in support of the claim. While both documents outline symptoms, neither indicate an impact on the Veteran's occupational functioning that would result in higher evaluation or illuminate any evidence in the record to support such a finding. For example, the August 2021 brief argues that the Veteran's reports of near-continuous depression "would" lead to deficiencies in most areas and Veteran's reports that some days he could not get out of bed "would not enable him to show up for work or school on a sufficient basis..." See Brief of Appellant August 21, 2021. However, as established above, when viewed as favorably to the Veteran as possible, the factual record simply does not demonstrate or support such a finding. There is no indication at all that the reported near-continuous depression or an inability to get out bed resulted in any occupational impairment. To the contrary, as stated above, the only facts in the record for the Veteran leaving positions during the appeal period were supplied by the Veteran and he did not indicate it was due to the service-connected PTSD, to the contrary, with the last position he indicated it was due to the nonservice-connected back. The Board has also thoroughly reviewed the January 2020 private psychologist's examination and record review and finds it of little probative value to the period on appeal. Specifically, regarding the private psychologist assessment of the August 2016 VA examination, the examiner disagrees with what check boxes were selected during the examination and the VA examiner's narrative of the Veteran's symptomology at the time. To be sure, neither the Veteran nor his representative have argued that the August 2016 VA examination was inadequate at any point during the appeal period and the Board similarly declines to find as such. The August 2016 VA examination was conducted by a licensed clinical psychologist and provided a detailed rationale and adequately took into consideration the Veteran's lay testimony. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board has noted that the private physician would have checked the box for near-continuous depression. However, the inquiry here is if the Veteran experienced near-continuous depression that affected the ability to function independently, appropriately and effectively, and resulted in occupational and social impairment with reduced reliability and productivity or occupational and social impairment with deficiencies in most areas. As the Board has established here, the record reveals it did not. Again, during the 2016 examination, the Veteran reported being in a relationship that was going great and being socially active with a group of friends, in August 2018 he reported he had begun to enjoy activities such as food, socializing, and music, and in January 2019 reported training was going well with no concerns, in October 2019 the Veteran indicated that he left culinary school because he hurt his nonservice connected back. Finally, the Board observes the Veteran's reports of suicidal ideation once per month. In this regard, it is acknowledged that the presence of suicidal ideation in and of itself can support the assignment of a 70 percent rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board finds persuasive and supported by the finding in Bankhead the argument presented that that there need not be evidence of a suicidal intent or plan and that suicidal-related behaviour may cause occupational and social impairment with deficiencies in most areas. However, the Board first finds that the facts of Bankhead are distinguishable from the current case. Specifically, in Bankhead the appellant had an established history of suicidal ideation, whereas here, the Veteran has consistently denied suicidal ideation during the appeal period other than the August 2018 affidavit. Next, the Board observes that the presence of suicidal ideation does not require compulsory assignment of a 70 percent rating where, as here, the occupational and social impairment with deficiencies in most areas is not present. Therefore, while the Board observes and is sympathetic to the presence of suicidal ideations, there is no evidence of record of any impact to the Veteran's occupational or social functioning. This finding is further supported above where Board found the totality of the symptoms from the service-connected PTSD did not result in occupational or social impairment such that a higher evaluation is warranted for the appeal period. While the Veteran did experience symptoms contemplated by higher evaluationsthe evidence overall does not demonstrate the level of impairment associated with a 50 percent rating, or higher, for the period from March 2016 to July 21, 2019. As noted above, the Veteran's symptoms were either contemplated by or more consistent with a 30 percent 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 required for a 50 percent rating. The criteria for a 50 percent or higher rating are not met and the appeal must be denied. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.