Citation Nr: 21068934 Decision Date: 11/16/21 Archive Date: 11/16/21 DOCKET NO. 16-35 070 DATE: November 16, 2021 ORDER An initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT For the entire appeal period, the Veteran's PTSD was manifested by psychiatric symptomatology resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, without more severe manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2003 to June 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2011 by a Department of Veterans Affairs (VA) Regional Office. In October 2018 and June 2021, the Board remanded the issue on appeal for additional development and the case now returns for further appellate review. Entitlement to an initial rating in excess of 30 percent for PTSD. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran's PTSD is evaluated as 30 percent disabling as of July 18, 2010, the date of service connection, pursuant to Diagnostic Code 9411, which provides that such disability is rated under the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. In pertinent part, the General Rating Formula provides a noncompensable rating where a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is warranted when there is 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 continuous medication. A 30 percent rating is warranted when there is 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). A 50 percent rating is warranted when there is 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "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." 38 C.F.R. § 4.126(a). Turning to the evidence of record, a May 2011 VA examination report indicates the Veteran had not undergone any treatment for a mental disorder in the prior year. He reported sleep impairment that involved night fights, frequent awakening, and night sweats, but denied hallucinations, delusions, obsessive/ritualistic behavior, homicidal and suicidal thoughts, and panic attacks. The Veteran complained of a short temper and being unable to maintain minimum personal hygiene; however, the VA examiner noted that he had no problem with activities of daily living and his mental status examination was normal. The Veteran was married with two children and reported having two to three good friends. He was employed full-time as a mechanic and had lost a total of one week of work in the last 12 months due to medical issues. The VA examiner found the Veteran's PTSD signs and symptoms were transient or mild and decreased his work efficiency and ability to perform occupational tasks only during periods of significant stress, which is consistent with a 10 percent rating under the General Rating Formula. In particular, the VA examiner determined the Veteran was limited by sleep features that resulted in daytime fatigue, occasional poor concentration, and irritability. At an August 2016 VA examination, the examiner found that, although the Veteran had a formal diagnosis of PTSD, his symptoms were not severe enough to interfere with occupational and social function or require continuous medication, which is consistent with a noncompensable rating under the General Rating Formula. In addition, the VA examiner noted there were no significant changes in the Veteran's social/marital/family circumstances or occupation since the last examination in May 2011. Specifically, he still lived with his wife and two children, and he kept in contact with his sister and father. He did not have an active social life outside of his family. The Veteran was working at the same job as a railroad mechanic and reported feeling content with his job and current living situation. The Veteran denied receiving any mental health treatment since the May 2011 VA examination, and the VA examiner determined the Veteran did not report any clinically significant symptoms of PTSD. In this regard, he noted that, although he reported disturbed sleep and chronic sleep impairment, the Veteran did not describe a significant disruption of sleep due to nightmares or hypervigilance, and he did not report a significant impact on his overall social or occupational functioning. The Veteran did not describe any significant pattern of hyperarousal, anxiety, depression, or avoidance behavior, and he denied current or recent homicidal or suicidal ideation, bizarre or delusional beliefs, and morbid preoccupations. Moreover, the VA examiner found the Veteran no longer met the criteria for a diagnosis of PTSD; rather, the VA examiner provided a diagnosis of insomnia, which was believed to be a progression of his PTSD. According to a February 2020 VA treatment record, the Veteran's marriage was supportive, he had solid family relationships, and he socialized occasionally. He reported symptoms of insomnia, nightmares, irritability, a depressed mood, and anhedonia, and he asserted his sleep disturbances impaired his occupational functioning "at times." A January 2021 VA treatment record reflects the Veteran's denial of nightmares and flashbacks, but shows he held phone visits with a mental health provider. Following psychiatric examination of the Veteran in August 2021, a VA examiner found that his PTSD was manifested by mild or transient symptoms that decreased work efficiency and his ability to perform occupational tasks only during periods of significant stress, or were controlled by medication, which is consistent with a 10 percent rating under the General Rating Formula. In particular, the Veteran reported symptoms of depressed mood, anxiety, panic attacks more than once per week, chronic sleep impairment, mild memory loss, and impaired impulse control. With respect to his social functioning, the Veteran reported a pretty good relationship with his wife, children, and sister, and he had friends. As for his occupational history, the Veteran continued to work for the railroad as a mechanic and denied any problems due to mental health issues; however, he did have some concentration problems and sleepiness at work due to poor sleep. As for treatment, physicians had prescribed several trials of medications for sleep, and he had started therapy just prior to the pandemic but had to stop due to a scheduling conflict. He reported difficulty initiating and maintaining sleep and waking up anxious. He experienced nightmares and disturbing memories and avoided talking about his stressors. He also reported negative beliefs about the world and had a hard time remembering people's names. He denied any homicidal or suicidal thoughts as well as hallucinations and delusions. Upon review of the foregoing, the Board finds the Veteran's PTSD is manifested by psychiatric symptomatology resulting in, at most, occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks throughout the pendency of the appeal. In this regard, the nature, frequency, duration, and severity of such symptomatology, to include the Veteran's reported panic attacks more than once a week and impaired impulse control, does not more nearly approximate occupational and social impairment with reduced reliability and productivity at any time during the appeal. Notably, the record shows the Veteran has worked full-time as a railroad mechanic throughout the period, without little to no time lost due to any psychiatric symptomatology, and he has denied significant impairment in his occupational functioning as a result of any symptoms other than some difficulty due to sleep impairment. As pertinent to his social functioning, the evidence indicates that he has maintained good relationships with his wife, children, and sister as well as several friendships during the pendency of the appeal. Further, the VA examiners, who considered the totality of the Veteran's psychiatric symptomatology and the resulting functional impairment, found that his PTSD resulted in, at most, mild or transient symptoms that decreased work efficiency and his ability to perform occupational tasks only during periods of significant stress, or were controlled by medication, which is consistent with a 10 percent rating under the General Rating Formula. In this regard, the Board affords significant probative value to the VA examiners' determinations as such were based on psychological evaluations of the Veteran during the appeal period and consideration of his own statements of his symptoms in light of the rating criteria. Such evidence, with consideration of the totality of the nature, frequency, severity, and duration of the Veteran's psychiatric symptomatology as demonstrated by the contemporaneous medical evidence of record, indicates his psychiatric symptomatology was not of sufficient severity to result in greater impairment of his occupational or social functioning. Consequently, an initial rating in excess of 30 percent is not warranted under the General Rating Formula. In reaching such determination, the Board acknowledges the Veteran's belief that his PTSD is more severe than as reflected by the currently assigned disability rating. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected PTSD; however, the Board finds that his symptomatology has been stable throughout the appeal. Thus, assigning staged ratings is not warranted. Furthermore, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching such determinations, the Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 30 percent for PTSD. Thus, the benefit of the doubt doctrine is not applicable and his initial rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.