Citation Nr: 21068276 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-00 429 DATE: November 9, 2021 ORDER Entitlement to a rating in excess of 30 percent for PTSD is denied. FINDING OF FACT During the period on appeal, the Veteran's PTSD was characterized by no worse than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; he did not demonstrate reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1110, 1155; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1996 to December 2009. The Board notes that the Veteran submitted a statement in August 2021, requesting that the appeal be remanded for RO review of new evidence submitted since the most recent supplemental statement of the case. However, the Veteran's representative submitted a statement in October 2021, waiving initial review of all new evidence. The Board presumes that this supersedes the August 2021 statement, and will continue to review the claim. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2014); 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran's PTSD, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, "[w]here there is a question as to which of two evaluations shall 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. Here, service connection for PTSD was awarded in a January 2011 Rating Decision, rated at 30 percent, effective December 4, 2009. The Veteran did not appeal this decision or submit new and material evidence within a year. Moreover, his increased rating claim was received in May 2015, indicating the start of the appeal period. Entitlement to a rating in excess of 30 percent for PTSD The Veteran is presently service connected for PTSD, rated as 30 percent disabling for the period on appeal. He contends he is entitled to a higher rating, noting to his June 2015 C&P examiner that his anger and jumpiness have worsened since he first was awarded service connection. In his August 2015 NOD, the Veteran recalls struggling daily, feeling like every action is a waste of time. However, the next higher rating is not for application. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides the general rating formula for mental disorders. Under the applicable diagnostic criteria, a 30 percent rating is granted 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). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned 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. Id. 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 ideations; 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 the veteran's personal appearance and hygiene; difficulty in adapting to stressful circumstances (including in work or work like settings); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's 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 examination. See 38 C.F.R. § 4.126 (a). Further, when evaluating the level of disability arising 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 (b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. During the period on appeal, the Veteran's symptoms did not rise to the level of occupational and social impairment with reduced reliability and productivity. For example, during the period, the Veteran was alert and oriented as to all spheres. During June 2015, August 2015, and September 2019 examinations, the Veteran presented with normal hygiene and attire. Furthermore, his June 2015 and September 2019 VA examiners noted his neat and clean appearance. Despite reports of sometimes forgetting to shower, no deficiencies in hygiene were observed on examination. Thus, the Veteran retained the ability to maintain minimal hygiene during the period on appeal. Moreover, during the period on appeal, the Veteran's speech and thought process were generally normal. Prior to the appeal period and immediately after returning, the Veteran recalls drinking heavily and severely, not caring if he woke up the next morning. Though he reduced his drinking greatly in 2011, two years after his separation, the Veteran reported still drinking heavily to his June 2015 examiner, to cope with his symptoms, usually stopping when prompted by his wife. At his initial July 2016 mental health assessment, the Veteran reported excessive drinking about once a month. The Veteran reports to his June 2015 examiner that his drinking had not impaired his social or occupational functioning, nor does the evidence indicate such impairment. Thus, while drinking may have limited his potential, the evidence does not show sufficient impairment in judgment or thinking to show reduced reliability or productivity. Moreover, the Veteran's disturbances in motivation and mood do not produce reduced reliability or productivity. During the period on appeal, the Veteran endorsed significant anxiety. At his June 2015 examination, the Veteran described his mood as mostly okay, while he mentioned to his August 2015 examiner moodiness and constant edginess, never sitting with his back to a door, and avoiding people. The Veteran's August 2015 examiner noted that he self-isolates and most days, and reported always being tired. The Veteran began seeking mental health treatment in July 2016. At this initial assessment, he again reported easy irritability and anger. The Veteran's quickness to anger continued to his September 2019 examination, though his coping mechanisms appear to have improved, given his decreased alcohol intake. Further, the Veteran's current 30 percent rating for this period encompasses the panic attacks he describes, as the remainder of the evidence does not indicate a 50 percent rating. Despite his intermittent depressive symptoms, the Veteran has generally been able to function independently. While the Veteran's symptoms, including anxiety and social avoidance, have caused him difficulties at work, the 30 percent rating in DC 9411 specifically contemplates "intermittent periods of inability to perform occupational tasks." While the Veteran exhibited sleep impairment throughout this period, such symptoms are also contemplated by his current rating under DC 9411. At his June 2015 examination, the Veteran estimated getting 6 hours of sleep a night, waking up about 3-4 times in the night, sweating. The Veteran noted avoidance of his stressors, (to the extent of not telling people he was in the service), hypervigilance, and exaggerated startle response. Likewise, at his August 2015 examination, the Veteran estimated sleeping 3 to 4 hours overnight and 5 to 7 hours in a 24-hour period. He denied having nightmares, but could wake up "freaking out." Sleep disturbances such as those described above, while undoubtedly disturbing, are not uncommon with PTSD and any resulting occupational or social impairment is included in the Veteran's current rating. The Veteran experienced some short term memory loss and cognitive difficulty during the appeal period, while still being able to complete work-related tasks. Specifically, at his June 2015 examination, the Veteran reported having to stop and gather his thoughts during his shifts with the post office, a generally fast-paced environment. in his August 2015 NOD, the Veteran reported great difficulty remembering instructions. He also reported intermittent confusion, decreased attention span, and difficulty finishing tasks. At his July 2016 assessment, the Veteran's thinking was noted to be sometimes confused. On the other hand, at his September 2019 examination, the Veteran was able to count backwards by sevens starting at 100, recall one of three objects after five minutes of distraction, and completed simple and complex arithmetic. Notably, despite a 2008 DUI, the Veteran has not experienced difficulty with the law during the appeal period. Thus, the Veteran's thought process and judgment seem generally intact during the appeal period. The Board is cognizant that the Veteran has on some occasions indicated suicidal ideation, which is a symptom associated with a 70 percent rating. However, such indications were very inconsistent. Specifically, while the Veteran reports suicidal thoughts and ideations in his December 2016 VA Form 9, he denied them at doctor's visits dated May 2014, February 2017, January 2021, and February 2021, and mental status examinations dated June 2015, August 2015, and September 2019. Such inconsistent and sporadic indications do not persuade the Board that an increased rating would be warranted on this basis. Moreover, it should be noted that a single symptom in the meeting the 70 percent criteria is not a "tripwire" for a higher rating but is merely one aspect of his overall disability picture. Indeed, based on the symptoms clinically observed, the Veteran has experienced some of the relevant symptoms that might support a rating in excess of 30 percent. For example, he has exhibited flattened affect; impaired judgment, forgetting to complete tasks, and irritability. However, in the Board's view, the criteria for the next-higher 50 percent rating depict a level of impairment, when viewed as a whole, that is more severe than the symptoms displayed by the Veteran. Indeed, many of these objective symptoms, to include 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), have not been demonstrated. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there may be other indications of reduced reliability and productivity, to include social and occupational inadaptability. In this regard, it is clear that the Veteran's disorder impacts his social and occupational functioning. Nevertheless, the evidence does not indicate that a rating in excess of 30 percent is warranted. The Veteran has been married to current wife for several years. He describes his relationship with his wife and stepchildren as good, although he stated periods of anger, he is able to regain his composure. While the Veteran has a mixed relationship with his daughters, he sees summers and holidays, and a relationship with his sister and parents described as "fine." The Veteran's wife notes in a May 2015 buddy statement that he is very withdrawn socially, only has two friends, and avoids going out. When at a kids' sporting event, the Veteran acts anxious, to the point where it affects his family's enjoyment. Further, the Veteran's wife notes road rage and irritability with children if they do the slightest thing wrong. These are factors supporting the Veteran's claim. However, the Veteran is noted to utilize his support system, consisting of his parents, sister, and parents in law. The Veteran mentioned several leisure activities to his June 2015 examiner, including playing with his children, swimming, fishing, and hunting. He also noted in an August 2016 note that he enjoys coaching children's sports, and mentoring people -- largely because the focus is away from him. In his August 2015 NOD, the Veteran notes difficulty holding on to relationships, his current marriage being his twelfth one since returning. At his September 2019 VA examination, however, the Veteran reported still having a good relationship with his wife, as well as his children with his former wife, and is close with his stepson. While he reports his stepdaughter "pushing his buttons," they have a relationship, indicating his social reliability. While he notes being easily overwhelmed due to mood symptoms, the Veteran's occupational impairment does not approach reduced reliability or productivity. At June 2015 VA examination, described some memory and concentration difficulties with his job at the post office, but denied limitations beyond these. At his August 2015 VA examination, the Veteran reported enjoying his work, and positively reacting with his coworkers, though he does not socialize with them and they know to limit their interactions with him. Notably, the Veteran has an active relationship with his son's sport's team, which he serves as a coach. Indeed, as of his most recent September 2019 C&P examination, the Veteran generally adequately performs his duties The Veteran reported sustained employment with the Post Office, the limited interaction being compatible with his PTSD symptoms. The Veteran reported increased symptoms at a January 2021 psychiatry visit. Specifically, he reported hypervigilance, waking at night anxious, irritable, and upset. He reported shortness of breath and panic at times, and continued avoidance of his PTSD stressors. He admitted to smoking marijuana day and night to calm himself. Nonetheless, in a February 2021 telephone note, the Veteran's thought process appeared logical and goal-directed, his speech was normal of rate and rhythm, and he was negative for suicidal and homicidal thoughts. Accordingly, any increased symptoms were still productive of no more than occasional decrease in work efficiency, and addressed by his 30 percent rating. Given this evidence, the Board determines that the Veteran's psychiatric symptoms for this appeal period most nearly approximate the symptoms listed for a 30 percent rating. Specifically, his psychiatric disability was primarily manifested by disturbances of mood and motivation, substance abuse, and sleep impairment. As the frequency, duration and severity of the Veteran's psychiatric symptoms demonstrate and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) for the appeal period, a 30 percent evaluation, but no more, is warranted for the Veteran's PTSD. 38 C.F.R. § 4.130, Diagnostic Code 9411. For the foregoing reasons, a rating in excess of 30 percent is not warranted for the period. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Maskatia