Citation Nr: 21013709 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 19-21 150 DATE: March 10, 2021 ORDER Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) from October 28, 2016, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s PTSD symptoms cause occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1985 to March 1988 and September 1990 to March 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision issued by the regional office (RO). The Veteran is in receipt of a 50 percent rating for PTSD under DC 9411 from October 28, 2016. The Veteran appealed for a higher disability rating. In October 2019, the Board denied the Veteran’s claim for an increased initial rating for PTSD. In October 2020, the parties entered a Joint Motion for Partial Remand (JMPR) exclusively relating to the issue of an increased initial rating for PTSD. The JMPR was granted by the United States Court of Appeals for Veterans Claims (CAVC) later in the same month. Within the JMPR, the parties agreed that remand was warranted for the Board to provide adequate reasons or bases for its determination because, although the Board listed the relevant facts in assessing a 50 percent initial rating, it did not provide analysis as to why a higher rating was not warranted. The Veteran has reported a range of symptoms resulting from service-connected PTSD, including depression, anxiety, paranoia, intrusive thoughts, hypervigilance, social isolation, nightmares, sleep difficulty, passive suicidal ideation, and auditory hallucinations. Increased Ratings 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 30 percent disability rating is warranted when there is 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 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 initial rating for PTSD. The reasons follow. The Veteran began routine mental health counseling through VA in 2017 and reported depressive and anxious symptoms with paranoia, intrusive thoughts, nightmares, hypervigilance, reduced concentration, and sleep difficulties. Despite this, findings on mental status examination were predominantly normal, showing the Veteran to be fully alert and oriented, with a linear, organized thought process, intact memory, and fair insight and judgment. He was generally described as calm and cooperative. In a June 2017 VA examination report, the examiner found the Veteran met the criteria for a diagnosis of PTSD. The Veteran reported being in a stable marriage for over 10 years, having a biological son that lives with him, and having a long history of stable employment. The VA examiner noted symptoms of depressed mood, anxiety, and chronic sleep impairment. He exhibited some emotional lability, but there were no reports of harm to self, harm to others, or hallucinations. The VA examiner opined that the Veteran’s PTSD manifested in 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 continued with routine counseling with treatment notes indicating generally stable functioning with mental status examination findings consistent with those discussed above. He also began attending PTSD group counseling and was regularly noted to be an active participant. Notes from January 2019 state that the Veteran provided the group with a majority of insight on how to manage anger and that he appeared to have a genuine concern for group members and trying to help others. The Veteran submitted to a second VA examination in October 2018. The VA examiner confirmed the prior diagnosis of PTSD. The Veteran described experiencing paranoia, avoidance behaviors, social isolation, reduced interest, and recurrent nightmares. He was described as pleasant and cooperative with an organized and logical thought process, a full and appropriate affect, no evidence of psychosis, and no suicidal ideation. Again, there was no reports of self-harm or hallucinations. The VA examiner opined that the Veteran’s PTSD manifested in 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 has separately provided multiple statements to explain his PTSD symptoms. In an April 2017 statement, the Veteran explained that he experiences flashbacks, nightmares, difficulty in social situations, and difficulty discussing events related to service. In February 2018 correspondence, the Veteran wrote that he had difficulty being in large crowds, difficulty maintaining family relationships, experiences fearfulness when hearing loud noises, and described traumatic events he experienced in service. In a separate February 2018 correspondence, the Veteran explained that he was paranoid and depressed, experienced flashbacks and nightmares, and has difficulty with his family relationships. The Veteran provided additional lay statements in February 2018 from friends and family. These lay statements reported that the Veteran was an upbeat person prior to service and was “quiet” after service separation. The Veteran was described as experiencing memory loss, difficulty concentrating, and trouble completing tasks at work. The lay evidence also reported that the Veteran has lost interest in hobbies, was hypervigilant, and was self-medicating for the psychiatric symptoms. Both the June 2017 and October 2018 VA examiners, when asked which of the following best summarized the Veteran’s level of occupational and social impairment, checked boxes describing occupational and social impairment consistent with the criteria for a 30 percent rating. While the adjudicator makes the determination of what evaluation is warranted for the service-connected PTSD, the examiners’ conclusions that the Veteran’s PTSD was summarized best by the criteria described under the 30 percent rating is evidence against a finding that the Veteran’s psychiatric disorder causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood to warrant a 70 percent rating or higher. The totality of the evidence does not support a level of disability warranting an increased rating in excess of 50 percent. Specifically, the preponderance of the evidence is against a finding that the Veteran’s symptoms demonstrate the severity of symptoms described for a 70 percent rating, including 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships. For example, the Veteran’s mental status examinations have been generally unremarkable, indicating no impairment in thought process or communication, a linear and goal-directed thought process, no delusions/hallucinations, fair insight and judgment, and intact memory. The Veteran has routinely denied suicidal ideation and was described as calm, cooperative, and pleasant. He has remained fully independent in activities of daily living and has been in a stable marriage for over a decade. The Veteran has received only routine counseling and has not required urgent or inpatient treatment. The Veteran has regularly attended PTSD group counseling and been reported as an active participant. He has been noted to provide insight to other group members and show genuine concern while trying to help other members, indicative of adequate social functioning. The Veteran has been married to his wife since 1997 (more than 20 years), with whom he has a positive and supportive relationship. VA treatment records show she would attend mental health sessions with the Veteran. This is evidence against deficiencies in family relations and the inability to establish and maintain effective relationships. Rather, it appears that the Veteran’s symptoms of mood disturbances, anxiety, sleep difficulties, nightmares, paranoia, and social isolation, and are adequately addressed by a 50 percent disability rating, which specifically considers 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; and difficulty in establishing and maintaining effective work and social relationships. The Veteran’s chronic sleep impairment symptoms are specifically addressed under the criteria for a 30 percent disability rating. Likewise, his concentration difficulties are most nearly approximated by the decrease in work efficiency and intermittent periods of inability to perform occupational tasks, as described under the 30 percent rating criteria. Thus, the weight of the evidence is against an initial increased rating in excess of 50 percent. The Board notes that the Veteran has reported experiencing periodic auditory hallucinations relating to his military experience. However, these hallucinations do not appear to significantly impact the Veteran’s overall functioning. He has denied perceptual disturbances on many mental status examinations during the appeal period. The Veteran did not report these symptoms during his VA examinations. He has also denied command hallucinations and has reported the symptoms to have improved over time. They have not disrupted routine findings that the Veteran has intact cognition, is fully oriented, has a linear, organized thought process, and has remained independent in activities of daily living. Thus, this alleged symptom does not impact the Veteran’s overall functioning. Additionally, the Board acknowledges the Veteran's treatment records and VA examinations document that the Veteran has reported some passive suicidal ideation during the relevant time period. However, the facts of this case are distinguishable from those described in Bankhead v. Shulkin, 29 Vet. App. 10 (2017), in which the Court 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 reports of passive suicidal ideation 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 consistently denied active suicidal ideation on mental status examination and recorded multiple negative suicide screenings in 2016, 2017, 2018, and 2019. In 2018, the Veteran reported a history of passive suicidal ideation, but stated that he could not recall the last occurrence of this. The VA treatment records show that the Veteran’s wife called the hotline in August 2018 because she felt the Veteran was in a crisis, and she worried that if he cooked something, he would burn the house down. VA tried contacting the Veteran. When someone finally reached the Veteran the next day, he denied he was experiencing severe symptoms the prior night. Rather, he described having a bad night two nights ago and reported experiencing frequent nightmares, but he specifically denied any suicidal ideation or homicidal ideation at that time. The Veteran declined additional assistance from his mental health team. Following this incident, he continued to deny suicidal ideation in November 2018, December 2018, March 2019, and May 2019. The record shows the Veteran has had no prior suicidal attempts, and the Veteran has not required urgent treatment or inpatient hospitalization. The Veteran’s cognitive functioning has remained intact throughout the appeal period. Accordingly, the Veteran's overall disability picture does not rise to the level of deficiencies in most areas during the appeal period. 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 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.