Citation Nr: 21012285 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-39 119 DATE: March 4, 2021 ORDER An initial rating higher than 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Service connection for residuals, broken right hand is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating higher than 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 honorably on active duty in the United States Navy from December 1966 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2011 and August 2012 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). PTSD Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Whereas here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for different periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability have exhibited signs or symptoms that would warrant different ratings under the rating criteria. The Veteran’s PTSD is rated under Diagnostic Code (DC) 9411, which is part of the General Rating Formula for Mental Disorders found in 38 C.F.R. § 4.130. The Veteran is currently assigned a 50 percent rating. He contends he is entitled to a higher initial rating. For the following reasons, the Board finds that a higher initial rating is not warranted. A 50 percent evaluation is warranted where the disorder is manifested by 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 for example, 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 evaluation is warranted where the disorder is manifested by 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 that is intermittently illogical, obscure, or irrelevant; near-continuous panic of 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 an inability to establish and maintain effective relationships. A total 100 percent evaluation is warranted where the disorder is manifested by 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 personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The criteria listed above serve as examples of the type and degree of the symptoms effects that would justify a rating and are not meant to be an exhaustive list. Mauerhan v. Principi, 16 Vet. Ap. 436, 442–44 (2002). Social and occupation impairment must be due to the symptoms listed for that rating level, “or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114 (Fed. Cir. 2013). The Veteran’s VA treatment records reveal treatment for PTSD symptoms dating from September 2011. The Veteran described his symptoms as being awaken in the night by an explosion identical to the explosions he would hear in Vietnam. In September 2011 he described his anxiety as a seven out of ten and would experience the “loud explosion” two to three times per month. In November 2011, the Veteran reported that he had six or seven awakening events since his last session in October. In a December 2011 psychiatry attending note, the Veteran reported that the frequency of the loud explosion increased again to twice a week. These symptoms continued at this frequency until March 2012 when the Veteran started medication for his PTSD and reported that it had been almost two weeks since he last experienced an explosion. In April 2012 the Veteran reported that he had an explosion dream the previous week, but his dreams were calmer now. He was observed to still have a hypervigilant response. The Veteran reported in June 2012 that he was sleeping better, and the frequency of his explosion nightmares had decreased, but not the intensity. He also reported that when he does experience the nightmare of the explosion it is as if he is reexperiencing the original event. In December 2012, the Veteran discontinued taking medication for his PTSD. He was averaging two or three dreams of the explosion in a two-week period. The Veteran’s nightmares continued to decrease until July 2013 when he reported experiencing them about once a month. However, the Veteran began experiencing his nightmares once a week in November 2013, but this resolved by January 2014 when the he reported he had only experienced one nightmare since his last psychology session in November 2013. In April 2014, the Veteran reported experiencing only three nightmares since January 2014. The frequency of his nightmares increased again in July 2014. In August 2018, during an in-patient hospitalization for a non-service-connected matter, the Veteran reported he was experiencing nightmares approximately two time per month prior to his hospitalization and was not currently engaged in mental health treatment for his PTSD. He was also observed to be tearful when discussing his support system. A February 2019 therapy note documents that the Veteran volunteered twice a week and was actively involved in his community. A June 2016 hepatology consult notes that the Veteran retired from working security in 2015. The Veteran underwent a VA examination in June 2012. His symptoms were noted to be depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The Veteran’s level of occupational and social impairment was due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. On review of the record, the Board finds that the disability picture presented by the Veteran’s PTSD does not warrant a rating higher than 50 percent. The Board notes that “in the context of a 70 percent rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In this case, the Board finds that the evidence indicates occupational and social impairment with reduced reliability and productivity. The Veteran has consistently described his PTSD symptoms being recurring nightmares of a loud explosion that awakens him in the middle of the night. These nightmares have varied in frequency throughout the appeal period. The Board notes that the Veteran was able to maintain employment until his retirement and is still sociable as seen in him engaging in volunteering twice a week. These symptoms are consistent with the 50 percent rating assigned for the Veteran’s PTSD. There is no evidence of the Veteran experiencing any of the symptoms contemplated by a 70 percent rating, and as such a higher rating cannot be awarded. The Board acknowledges the argument raised by the Veteran’s representative that the Veteran minimizes his symptoms when examined. However, there is no evidence submitted as to what symptoms of PTSD the Veteran minimizes. Without evidence of symptoms that the Veteran is minimizing, the Board cannot award a higher rating. The Veteran argues that he is entitled to a higher rating based on the frequency of his nightmares. The Board acknowledges this argument, but as stated above the frequency of his nightmares is considered by the 50 percent rating currently assigned. Although the Board is sympathetic to the Veteran’s claim, he has not provided evidence to demonstrate that he in fact suffers from occupation and social impairment in most areas. The preponderance of the evidence weighs against assignment of a rating higher than 50 percent for the Veteran’s PTSD. As a preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. As such, a rating higher than 50 percent for the Veteran’s PTSD is denied. REASONS FOR REMAND Residuals, Broken Right Hand The Board cannot make a fully-informed decision on the issue of service connection for residuals of broken right hand because no VA examiner has opined whether the Veteran disability is related to an in-service broken hand. In November 2015, the Veteran submitted photographs from his time in-service in Hawaii with his right arm and hand being in a cast. In September 2010, the Veteran stated that while stationed in Hawaii he broke his right hand and his hand has ached ever since. The Veteran is competent to report observable symptoms and his photographs verify that the Veteran had his right arm and hand in a cast. There is insufficient medical evidence to verify that the Veteran’s right-hand ache is related to his in-service broken hand. As such, a remand is necessary to obtain a VA examination. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s residuals of broken right hand. The claims file should be made available to the examiner. The examiner must opine with complete rationale whether it is at least as likely as not (50 percent or greater) that the Veteran’s residuals of broken right hand are related to the Veteran breaking his hand during service. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Chandeck, 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.