Citation Nr: 21010165 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-32 007 DATE: February 24, 2021 ORDER An increased rating, in excess of 50 percent, for post-traumatic stress disorder (PTSD) is denied. FINDING OF FACT The severity of the Veteran’s PTSD results in occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an increased rating, in excess of 50 percent, for PTSD, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to July 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 2019, the Board remanded the case to the RO for further evidentiary development. In a June 2020 rating decision, the RO increased the rating for PTSD from 30 percent to 50 percent disabling, effective September 13, 2013. Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Legal Criteria The criteria for evaluating PTSD are found in the General Rating Formula for Mental Disorders, under 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is warranted where there is there is occupational and social impairment with reduced reliability and productivity due to such symptoms, such 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. Id. 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 work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating requires 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; and, memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442 – 44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). Background The Veteran served in Vietnam from December 1968 to December 1969. In July 2008, VA denied a claim for service connection for PTSD. The Veteran did not appeal that denial but in November 2013 filed a claim seeking to reopen service connection for PTSD. The April 2014 decision granted service connection for PTSD and assigned an initial 30 percent rating. The Veteran is currently assigned a 50 percent disability rating for PTSD, under 38 C.F.R. § 4.130, DC 9411. In an October 2013 letter, the Veteran provided examples of his PTSD symptoms including anger, irritability, violence, and difficulty with other. He reported that he owned a collision shop where he was difficult at times, he had a hard time dealing with customers, he would get angry if a job was not going well, and he would throw tools. He also reported about an incident in which he was involved in a fight at a bar, in which he described going into “survival mode”, as this is what he was taught in Vietnam, and he pulled a pocket knife and cut and stabbed someone, to save the lives of his employees and himself. Additionally, he reported having nightmares, in which he would wake up in a deep sweat; having a rocky marriage that is due to his sudden outburst and irritation, as he tends to take things out on his wife; and that he has set himself up to commit suicide several times. In an October 2014 notice of disagreement, the Veteran cited to various medical treatment records to support his assertion that he is entitled to a higher rating than what he has been assigned, for his service-connected PTSD. Summarily, the Veteran posits that in the assignment of his rating disability, there was no mention of his symptoms of chronic suicidal ideation, impaired judgment and impaired impulse control, chronic depression and panic attacks, difficulty in adapting to stressful circumstances (including work or a work-like setting); his inability to establish and maintain effective relationships; and additionally, he noted that he has not worked in the past four years. In a November 2013 buddy statement, the Veteran’s wife, D.H., described her relationship with the Veteran as having a “rocky marriage.” She also reported, among other things, that he had a strained relationship with his sons, he avoids attending family functions, and has outbursts of anger, being angry with the world. Medical treatment records reflect that the Veteran has had symptoms and manifestations of PTSD, including and not limited to, depression; suicidal ideation; irritability; a history of violence; and chronic sleep impairment, to include nightmares. See e.g. September 2013 Psychiatry Consult Note (noting that the Veteran reported having chronic thoughts of suicide, and that the Veteran’s wife reported that the Veteran had a history of being easily agitated, with verbal outbursts and physical altercations in the past,); see also March 2014 Psychiatry Group Counseling Note; see too, March 2019 Primary Care Note. The Veteran was afforded a VA examination for PTSD in March 2014. In this VA examination report, a VA examiner determined that the Veteran’s level of occupational and social impairment, with regards to his PTSD, could be best summarized as an 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 medication. The VA examination report also notes that the Veteran lives with his second wife in his own home; he has two sons; and that the Veteran described having a rocky relationship with his wife and children. On mental status evaluation, the VA examination report notes that the Veteran was cooperative; speech was clear, coherent, and relevant with normal reaction time; mood was euthymic; affect was appropriate; there was no evidence of thought order, suicidal ideation, and/or homicidal ideation; and that his memory and concentration were good. The VA examination report also notes that the Veteran had two felonies, and that he was on probation for two years, secondary to a bar fight, where he inflicted injuries on others. He, however, denied having any current legal problems. The VA examiner determined that symptoms that were attributable to his PTSD, include chronic sleep impairment; disturbances of motivation and mood; anger; and an irritable mood. In the most recent VA examination for PTSD, a VA examiner determined that the Veteran’s level of occupational and social impairment with regards to his PTSD could be best summarized as an 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 medication. The VA examination report reflects that he has been married since 1980; he enjoys spending time with his grandson; and he spends his free time doing housework. The VA examination report notes that the Veteran had not had any mental health treatment since his last evaluation, but that he struggles with sleep, depression, anxiety, and anger, but no suicidal or homicidal ideation. The VA examiner additionally noted that the Veteran’s depression and anxiety wax and wane, he is quick to anger, and his anger is frequent. On mental status examination, the VA examiner observed that the Veteran was on time for his appointment; affect and mood were normal; he was dressed appropriately, with normal hygiene; there were no problems with speech; he was pleasant and cooperative; and he was oriented to time, date, and place. She also determined that the symptoms that are attributable to his PTSD diagnosis, include depressed mood; anxiety; and chronic sleep impairment. Analysis After a review of all probative evidence, the Board finds that a rating, in excess of 50 percent, is not warranted. The evidence does not show a worsening of the Veteran’s PTSD, and specifically, the evidence fails to show deficiencies in most areas due to symptoms similar or equivalent in severity to those listed in the rating criteria for a 70 percent rating, such as, for example, impaired judgment; impaired abstract thinking; spatial disorientation; grossly inappropriate behavior; persistent danger of hurting himself or others; neglect of personal appearance or hygiene; intermittent inability to perform activities of daily living; or disorientation to place or time. See Vazquez-Claudio v. Shinseki, 713 F. 3d 112, 118 (Fed. Cir. 2013) (holding that a 70 percent disability rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation). Moreover, deficiencies in most areas such as work, family relations, judgment, thinking, or mood are not shown. (Continued on the next page)   Although the evidence does reflect evidence of chronic suicidal ideation, the probative evidence also indicates that the Veteran has not reported and/or manifested suicidal ideation since 2014. As a matter of fact, in one of his most recent medical treatment records, an examiner noted that the Veteran did not have any active thoughts of self harm or injury. See October 2018 Physical Medicine Rehab Consult Note. Furthermore, despite the Veteran’s self-report of symptoms of impaired judgment and impaired impulse control, panic attacks, difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships, medical treatment records and/or VA examination reports do not show and/or reflect that these symptoms are attributable to his PTSD. (Continued on the next page)   The probative lay and medical evidence reflects that despite his PTSD symptoms, he has been married to his current spouse for approximately 40 years, despite having a rocky marriage; he is still able to enjoy and/or take pleasure with spending time with his grandson; and he spends his free time doing housework. Additionally, the medical evidence consistently noted that the Veteran dressed appropriately for appointments, there were no problems with his speech, and he was oriented to time, date, and place. A March 2019 primary care note indicated that the Veteran reported that his mood is “okay”, despite having same poor sleep of 4 – 5 hours, with nightmares, but he was not interested in seeing mental health. Particularly, these examples are not factors that constitute a PTSD disability with the degree of severity, frequency and/or duration, that causes occupational and social impairment with deficiencies in most areas work, family relations, judgment, thinking, or mood, as described above. Therefore, an increased rating, in excess of 50 percent, must be denied for service-connected PTSD. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.