Citation Nr: 21005572 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 19-00 062 DATE: February 2, 2021 ORDER Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT At no time after May 10, 2016, did the Veteran’s PTSD result in social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 30 percent for PTSD after May 10, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty from September 1965 to September 1968. This initial rating decision appeal comes to the Board of Veteran’s Appeals (Board) from a December 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its decision the RO granted service connection for PTSD with an evaluation of 30 percent, effective May 10, 2016. The Veteran timely appealed. Increased Ratings A disability rating is determined by applying 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Codes 9411. The schedule for rating psychiatric disabilities, to include PTSD and other acquired psychiatric disorders, provide that a 30 percent rating is when 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). A 50 percent rating is warranted 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, 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 the examination. When evaluating the level of disability 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. 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 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). Entitlement to an evaluation in excess of 30 percent for PTSD The Veteran’s PTSD is rated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411, from May 10, 2016. The Veteran contends he is entitled to a rating higher than 30 percent. Effective May 10, 2016, the Veteran was diagnosed with PTSD. The initial examination noted Veteran had 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. The Veteran noted he experienced panic attacks multiple times a week, especially when he had to be in public. He denied decreased interest in participation in activities; rather, he keeps himself busy to avoid thinking about his experience in Vietnam. He noted he got 4-7 hours of sleep a night with nightmares about 3-4 times per week. He denied any significant difficulties with concentration and attention. He also denied any homicidal ideation. He noted he experienced road rage. He noted he experienced hearing noises and “seeing things” that others don’t, but the writer stated it appeared to be an aspect of PTSD-related hypervigilance and not formal delusions and/or hallucinations. The Veteran reported in the December 2016 VA examination that he had occasional morbid thoughts of death. The United States Court of Appeals for Veterans Claims (Court) has held that "the language of [38 C.F.R. § 4.130] indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). However, Section 4.130 "'requires not only the presence of certain symptoms' but also that those symptoms have caused the level of occupational and social impairment associated with a particular disability evaluation." Id. at 14-15 (quoting Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013)). Here, while there is one report of suicidal ideation, the Veteran extensively denied suicidal ideation in treatment records and examinations both before and after the incident. See October 2019 and October 2016 VA treatment records. Thus, the December 2016 statement appears to have been an isolated occurrence with no indication that this symptom standing alone was frequent, long-lasting, or severe enough to produce a level of social or occupational impairment resulting in more than 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). During the examination the Veteran was dressed in casual, weather appropriate attire, and had no notable deficits with grooming or hygiene. He was attentive and cooperative. His thought patterns and expressions were linear, relevant, and logical. His mood was described as “fairly good” unless triggered by an external cue. In the May 2016 treatment plan, the Veteran reported he needed help with: feeling less sad, angry, or afraid and adjusting his medication[s]. He also reported he needed tools to help him have a better relationship with other people; needed increased support for problems he was having; and knowledge about how to overcome an emotional problem or mental illness. He reported he experienced the PTSD symptoms of intrusive memories, hypervigilance, and anger. During this treatment plan the Veteran set a goal of reducing anger, periods of anxiety, and social isolation. He stated he wanted to learn how to improve how he handles the distress he feels when exposed to triggers associated with trauma. Progress was to be measured though ongoing assessment in therapy. In June 2016 the Veteran began attending a PTSD psychoeducational group focused on symptom management, communication, and emotional support. The Veteran attended this group session approximately once a week since 2016 (excluding times of travel and illness or injury.) Throughout his time with the group, he consistently reported he did not have any suicidal or homicidal thoughts. He was consistently reported to not be in any significant distress. He was consistently reported to be engaged in the conversation. The Veteran did report times where he was feeling anxious, had nightmares, and was triggered by events such as witnessing a car crash and attending an auction. The Board would like to acknowledge just how hard the Veteran is working at managing his PTSD. The dedication he has shown to taking care of his health is admirable. He reports that he is productive around the house, things are better at home with his wife, he continues to work on his craft where he works with shells and wood, and he enjoys seeing his fellow members of the group. In regard to his social life, the Veteran has been married to his second wife for over 20 years. He sees his children, grand-children, and great-grand-children. He did also note he had difficulty making new friends. Concerning his work capacity, the Veteran is retired. He retired from truck driving and working as a welder. The Board recognizes the Veteran has exhibited flattened affect and occasional disturbances of motivation and mood, which markedly improved throughout the duration of the period after May 10, 2016. However, these symptoms alone are not sufficient to produce social impairment with reduced reliability and productivity that is consistent with a 50 percent or higher disability rating. Here, the frequency, duration, and severity of the flattened affect and dysphoric mood were not so severe so as to cause social impairment with reduced reliability and productivity. Additionally, after May 10, 2016, the Veteran did not demonstrate other symptoms articulated in the 50 percent or higher disability criteria. For example, while he noted he had difficulty making new friends, in the evidence described above, the Veteran is shown to have positive relationships with his family, including his wife and adult children. Medical records also show normal speech that is not circumstantial, circumlocutory, or stereotyped speech which is characteristic of a higher rating. While the Veteran previously reported he experienced panic attacks more than once a week, this symptom alone was not sufficient to produce the level of occupational and social impairment contemplated by a 50 percent rating. Specifically, the VA examiner who evaluated him at the time of that report found his overall disability level was “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.” He also did not have difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment, or impaired abstract thinking. Here, the Veteran’s symptoms of flattened affect and disturbance of motivation and mood occurred infrequently enough so as to not result in a higher overall disability picture. With regards to the Veteran’s dysphoric mood, this description is similar to the symptom of a depressed mood as listed in the 30 percent rating criteria. As noted in the Veteran’s treatment records, he used the tools and techniques from his mental health consultations to make his symptoms less severe and less frequent. The Board acknowledges the Veteran’s report that “It’s not just me that is dealing with this condition, my whole family is suffering,” as a legitimate concern. But treatment records show the Veteran’s affect, motivation, and mood have improved. The credible evidence shows the Veteran’s symptoms do not produce social impairment with reduced reliability. After a thorough review of the evidence, the Board finds this assessment is supported by the record. The Board has sufficient evidence to understand his disability picture and make an adjudication. The frequency, severity, and duration of the Veteran’s symptoms are contemplated by a 30 percent disability rating, and his request for a schedular rating higher than 30 percent is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Brewer, 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.