Citation Nr: 21070956 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-48 004 DATE: November 30, 2021 ORDER Entitlement to an increased disability for posttraumatic stress disorder (PTSD), in excess of 50 percent from August 20, 2014, is denied. FINDING OF FACT The Veteran's PTSD has not manifested in occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an increased disability rating for PTSD in excess of 50 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from October 1967 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2014 rating decision, which granted the Veteran a 50 percent disability rating for PTSD from August 20, 2014. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in July 2021. The Veteran has reported experiencing a range of psychiatric symptoms resulting from PTSD, including depression, anxiety, flashbacks, sleep disturbances, intrusive thoughts, mood disturbances, panic attacks, guilt, hypervigilance, avoidance behaviors, interpersonal conflict, social isolation, impaired impulse control, and suicidal ideation. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Rating Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provide the following ratings for psychiatric disabilities, including PTSD: Under the ratings, a 50 percent disability 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where 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 a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where 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 inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. The United States Court of Appeals for the Federal Circuit held that 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." Vasquez-Claudio v. Shinseki, 713 F3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, "serve as examples of the type and degree of symptom, 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.'" Vasquez-Claudio, 713 F.3d at 11718; 38 C.F.R. § 4.130, DC 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." 38 C.F.R. § 4.126(a). The Board 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 examination." Id. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an award of an increased rating in excess of 50 percent for PTSD. The reasons follow. The Veteran submitted his claim for increased rating in August 2014. He underwent a VA psychological evaluation in October 2014. The Veteran reported that he had retired in March 2013. The examiner stated that this had given the Veteran less to keep mentally focused on during the day, which worsened his symptoms. The Veteran stated that he enjoys spending time with family but limits social interactions otherwise. The Veteran was neatly groomed, alert, oriented, pleasant, and cooperative. His speech was logical and coherent. He struggled remembering some dates, but his memory was otherwise intact. He denied suicidal ideation. The examiner found the Veteran's condition to be characterized as occupational and social impairment with reduced reliability and productivity. This assessment is consistent with the criteria for a 50 percent disability rating. Thereafter, the longitudinal record shows that the Veteran's condition has been generally stable with some intermittent counseling, but no exacerbations requiring urgent or inpatient treatment. However, in his October 2015 notice of disagreement, the Veteran stated that he experiences panic attacks and disorientation to the point that he forgets where he is, with continued social isolation, mood disruption, difficulties at work, relationship struggles, and memory deficits. Treatment records in August 2016 state the Veteran was employed, working part time in his son's shop, as needed. Routine treatment records continued to show the Veteran to be cooperative with appropriate behavior while remaining independent in his activities of daily living. The Veteran underwent another VA examination in August 2017. The Veteran reported that he has been married for 45 years, his second marriage, and that his marriage is getting better. The Veteran stated that he loves talking to people but denied having any friends, before later admitting he has lots of friends. The Veteran reported that he had three suicide attempts in the aftermath of his separation from service, decades before the relevant period. He denied any active suicidal ideations since then. He was noted to have no behavioral or legal problems since his last examination. The Veteran described himself as nervous with some concerns about concentration and memory problems. The examiner described the Veteran as fully alert and oriented with a logical thought process, no evidence of delusions, and no suicidal ideation. The examiner stated that the Veteran is experiencing a moderate level of subjective distress, minimal social impairment, and minimal occupational impairment. The overall severity of the Veteran's PTSD was described as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. This assessment is commensurate with a 30 percent disability rating. Although the Veteran is competent to report his symptoms, the record demonstrates inconsistencies in the Veteran's reporting, which tends to damage the Veteran's overall credibility, as discussed by the August 2017 VA examiner. The Veteran's treatment records indicate he is not a reliable historian. The VA examiner stated that the Veteran was responsive to questions, but would sometimes respond "off target" and would respond "deflectively" at times. The examiner stated that the Veteran avoided volunteering facts about his arrest record, and that he "forgot" he had a history of DUIs until reminded, at which time he had no trouble providing more facts about the issue. The Veteran denied having friends, then later admitted that he had lots of friends. His responses to questions about mental health symptoms were also noted to be incongruent, denying having interest in doing things, then later reporting that he had not lost interest. He stated that bringing up Vietnam always resulted in him becoming very emotional; however, during examination, the Veteran showed very little emotion when discussing his experiences in Vietnam. The Veteran's reporting of his history of suicide attempts was also inconsistent with the record. The Veteran stated that he attempted suicide three times "right after leaving the Army," but during his initial PTSD examination in 2012, he admitted to cutting his wrist on one occasion only, describing it as "an accident," with no other incidents reported. These inconsistencies, intentional or otherwise, undermine the Veteran's credibility and make his lay statements of reduced probative value. Most recently, the record contains private treatment records from Dr. Adriana Ramirez that show that the Veteran has attended regular individual psychiatric therapy. These records indicate the Veteran's symptoms to include depressive symptoms, sleep disturbances, anxiety, interpersonal conflict, avoidance behaviors, hypervigilance, flashbacks, and suicidal ideation. However, these treatment records continue to demonstrate stable functioning without significant symptoms exacerbations. The Veteran was consistently found to be alert, focused, and engaged, with a logical thought process, intact attention span and memory, normal judgment, and good insight. He reported feeling isolated and preferring to spend time alone, but he reported that he has good relationships with his children, expressed appreciation for his wife, and stated that he interacts with his neighbors, and talks to his brothers on a regular basis. Despite reports of angry outbursts and impaired impulse control, the Veteran routinely exhibited appropriate behavior while being described as engaged and cooperative. While the adjudicator makes the determination of what evaluation is warranted for the Veteran's service-connected PTSD, the conclusions of the VA examiners herein that the Veteran's PTSD was summarized best by the criteria described under the 30 to 50 percent disability ratings is evidence against a finding that the Veteran's psychiatric disorder caused occupational and social impairment with deficiencies in most areas to warrant a 70 percent rating or higher. The record is largely absent of the level of severity of symptoms included in the criteria for a 70 percent disability rating, including 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships. Rather, the Veteran has consistently been found to be alert and oriented with a logical thought process. He is able to function independently and has maintained independence in his activities of daily living while exhibiting adequate hygiene, interacting appropriately, and maintaining good relationships with family and friends. He has also continued to work part time in his son's shop. These symptoms do not rise to the level of deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. The Veteran's primary symptoms are contemplated by the Veteran's existing 50 percent disability rating, which includes a flattened affect; impairment of short- and long-term memory; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Accordingly, the preponderance of the evidence is against an increased rating in excess of 50 percent for the Veteran's PTSD symptoms. The Board acknowledges the Veteran's treatment records and VA examinations that document the Veteran's history of suicidal ideation and remote history of suicide attempts. However, the facts of this case are distinguishable from those described in Bankhead v. Shulkin, 29 Vet. App. 10 (2017), in which the United States Court of Appeals for Veterans Claims held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130). Under the facts of Bankhead, the claimant was noted to have had recurrent suicidal thoughts and behaviors of varying severity, frequency, and duration throughout the relevant appeal period. Here, the Veteran's history of suicidal ideation and/or attempts do not cause the level of occupational and social impairment contemplated by the 70 percent disability rating as the evidence also shows that the Veteran has predominantly denied suicidal ideation during the relevant period. Although the Veteran's reporting of past suicide attempts has fluctuated, he has maintained that any such attempts occurred decades ago after his discharge from the military. Treatment notes reflect that he now recognizes suicide as a sin and that he would not make that mistake again. At his 2017 VA examination, he reported no active suicidal ideation since his prior attempts decades earlier. Additionally, the Veteran has maintained independent functioning with intact cognition, judgment, and insight, and he has not required emergency or inpatient treatment for his psychiatric symptoms. For these reasons, the Veteran's overall disability picture, including the Veteran's history of suicidal ideation/attempts, does not rise to the level of deficiencies in most areas during this part of the appeal period. Accordingly, based on the Veteran's functioning as reflected by the totality of the evidence during the relevant period, the Board finds that the preponderance of the evidence is against a finding that the service-connected PTSD warrants an evaluation in excess of 50 percent and that an increased rating is not warranted. As the preponderance of the evidence is against the claim for increased rating, the benefit of the doubt doctrine is not for application, and the Veteran's claim for a higher rating for PTSD is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.