Citation Nr: A21020335 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 200514-84771 DATE: December 21, 2021 ORDER An initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran's PTSD is productive of a disability picture that more nearly approximates that of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial 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 on active duty in the United States Army from September 2000 to November 2004. The Board notes that the VA determination on appeal was issued in December 2019. In May 2020, the Veteran timely appealed this AMA (Appeals Modernization Act) determination to the Board and requested Direct Review of the evidence considered by the Agency of Original Jurisdiction. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2 (d)). As the Veteran elected a direct review appeal lane, this review will be based upon the evidence already submitted to VA as of the date of his election. The Board is therefore precluded from reviewing the February 2021 VA PTSD examination, and the Board encourages the Veteran to file a Supplemental Claim with the Regional Office (RO) for this relevant evidence to be considered in conjunction with his claim. 1. An initial rating in excess of 50 percent for PTSD. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. The rating criteria for rating mental disorders, including PTSD, reads as follows: a 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. A 70 percent rating requires 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 work-like setting); inability to establish and maintain effective relationships. Id. A 50 percent rating requires 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 effective work and social relationships. Id. A 30 percent rating requires 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). Id. Evaluation under § 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Federal Circuit explained that the frequency, severity, and duration of the symptoms also played an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. After careful review, the Board finds that the evidence more closely approximates the criteria for a 50 percent rating. The evidence does not more closely approximate occupational and a social impairment with deficiencies in most areas to warrant a higher 70 percent evaluation. In November 2011, private treatment records note that the Veteran did not have depression, feelings of hopelessness, or a loss of interest in activities. The Veteran also stated that she was not thinking about suicide and did not have a suicide plan. In December 2016, private treatment records indicate that the Veteran reported having an overall good feeling about her health. In November 2017, private treatment records note evidence of depression and that the Veteran was not sleeping well. She denied suicidal and homicidal ideation. She indicated that she has several friends that she sometimes talks too. In June 2018, private treatment records note that the Veteran was admitted to a medical center for anxiety, depressed mood, and a suicide attempt. Treatment notes indicate that the Veteran had symptoms of depression and that she was given treatment on using coping skills to manage negative thinking. The Veteran was diagnosed with adjustment disorder with anxiety. In December 2019, the Veteran underwent a VA PTSD examination and the VA examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner indicated that the Veteran had been married for 12 years and has three children. The Veteran was employed as military police during her army career and is a high school graduate. She currently works part-time (20 hours per week) as a TSA agent. The Veteran began mental health treatment after deployment in 2004 and is currently prescribed Wellbutrin. The VA examiner noted that post-trauma symptoms include hypervigilance/social withdrawal, heightened anxiety states/panic attacks, intrusive memories, nightmares/poor sleep, disrupt focus, and irritability. The Veteran had two suicide attempts in 2008 and 2018, and psychiatric hospitalization in 2018. She denied any current or recent suicidal or homicidal ideation. The VA examiner noted that the Veteran's PTSD stressor occurred was when she was deployed to Iraq in 2004, during which she was subject to a range of threatening environments, including mortars, gunfire, and witnessing casualties. The examiner noted the Veteran displaying the following PTSD symptoms: depressed mood, anxiety, suspiciousness, mild memory loss, such as forgetting names, directions or recent events, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. Other PTSD symptoms the Veteran was showing included hypervigilance/social withdrawal, heightened anxiety states/panic attacks, intrusive memories, nightmares/poor sleep, disrupted focus, irritability, and arousal to/avoidance of cues/triggers. Further, the VA examiner indicated that the Veteran's behavior was within normal limits. The Board finds that for this period of appeal, the evidence preponderates against the assignment of a 70 percent rating for the Veteran's PTSD. The Veteran's PTSD symptoms do not more nearly approximate occupational and social impairment with deficiencies in most areas, which would warrant a 70 percent rating under Diagnostic Code 9411. The Veteran has not been found to have suicidal ideation; obsessional rituals which interfere with routine activities; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; or neglect of personal appearance and hygiene. The Board does note that the Veteran had two previous suicide attempts in 2008 and 2018; however, these predated the period on appeal. She denied any current or recent suicidal or homicidal ideation and the examiner considered this history of prior attempts and still concluded the past history in conjunction with current symptoms resulted in occupational and social impairment with reduced reliability and productivity. The Boards notes that the Veteran's symptoms are more consistent with a 50 percent rating. Significantly, the December 2019 VA examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. Throughout this period of appeal, the Veteran endorsed the following symptoms which are more consistent with a 50 percent rating: depressed mood, anxiety, suspiciousness, mild memory loss, such as forgetting names, directions or recent events, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The Veteran also has indicated she has denied any suicidal or homicidal thoughts. There is no doubt that the Veteran has had serious symptoms. However, the Veteran's PTSD symptoms do not more nearly approximate occupational and social impairment with deficiencies in most areas. Accordingly, the Board finds that the Veteran's symptoms of PTSD do not warrant a rating in excess of 50 percent. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.