Citation Nr: 21015947 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-35 304 DATE: March 18, 2021 ORDER Entitlement to an increased rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran's PTSD symptomatology more nearly approximated occupational and social impairment, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130 Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2000 to May 2008 and from January 2012 to December 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified at a Board videoconference hearing before the undersigned. A transcript of the hearing is of record. The Board remanded this issue in March 2019. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must 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. 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. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7. The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any evaluation claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. PTSD In a March 2014 rating decision, the Veteran was granted service connection for PTSD and assigned an initial 30 percent rating effective December 21, 2012. The Veteran filed a June 2014 notice of disagreement to the rating and perfected his appeal in September 2015. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran’s symptoms affecting her level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation, but are not meant to be exhaustive. Id. The Veteran’s PTSD has been rated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent evaluation is assigned for 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, and recent events). A 50 percent evaluation is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened effect; 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 evaluation is warranted for occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting 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. A 100 percent rating is not warranted unless 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. The Veteran was afforded a VA examination in March 2014. In that examination the Veteran was diagnosed with PTSD, and reported recurrent nightmares, avoidance of trauma related thoughts or feelings and negative alterations in cognition and mood, diminished interest in pre trauma activities, hypervigilance, exaggerated startle response and sleep disturbance. The examiner found occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress or symptoms were controlled by medication. The Veteran reported he had been married for about 12 years and he and his wife have two daughters, aged 9 and 1 week old. He stated he and his wife have been under stress due to the birth of their daughter, but that their marriage is stable and they are committed to one another. He stated that at the time of the examination he had a number of good friends who he enjoyed socializing with and he liked to work out, read and play video games in his spare time. He stated that after his return from deployment to Afghanistan, he was unable to find work for about a year and then got a job as a plumber’s apprentice in July 2013. He stated he liked the work so far and felt good about working. He stated that after he returned from deployment in December 2012, he continued to have hyperarousal symptoms and insomnia and began having symptoms of anxiety, panic symptoms, irritability, agitation, anger and hyperstartle response. He stated he tried to talk to a therapist about his symptoms, but was directed to see his outside doctor. He stated he also had some hypervigilance, recurrent, distressing dreams about being in combat situations in which he is unable to get to someone who is injured. The Veteran had symptoms of anxiety, panic attacks, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances including work or a worklike setting and impaired impulse control such as unprovoked irritability with periods of violence. The examiner noted the Veteran’s report that since he returned from his deployment to Afghanistan in December 2012, he has had various trauma related symptoms. Although his symptoms have decreased in severity and frequency over time since he returned from the deployment, he continues to have transient, mild re-experiencing (recurrent nightmares, marked physiologic reactivity after exposure to trauma-related stimuli), avoidance (avoidance of trauma-related thoughts or feelings), and negative alterations in cognitions and mood (persistent negative trauma-related emotions of anxiety, diminished interest in pre-trauma significant activities), and transient, moderately severe trauma-related alterations in arousal and reactivity (irritability, hypervigilance, exaggerated startle response, and sleep disturbance). His symptoms cause marked distress (but only mild impairment in social and occupational functioning due to hypervigilance, anxiety, anxiety-related avoidance and irritability) were consistent with the criteria for mild PTSD. The Veteran received treatment at the San Diego VAMC in 2014. He reported nightmares, but a significant decrease in such since starting medication. He noted a decrease in physical symptoms of anxiety but still noted he was paralyzed by his inability to advance. He noted his PTSD symptoms were improving and he was now experiencing more trouble with specific phobias. See September 2014 VAMC Treatment Record in CAPRI Records received on October 17, 2014. Thereafter, in May 2015, the Veteran was afforded another VA examination for his service-connected PTSD. The examiner noted the Veteran’s prior diagnosis of PTSD. The Veteran also noted that the 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 reported a history of being married, and it being his first marriage. He reported he has two daughters and reported a “super good” relationship with his daughters. The Veteran described a “good” relationship with his wife and described being very active with his daughter and taking his kids to after school activities and helping around the house; he reported he does everything short of cooking dinner. The Veteran reported working full time as a pipefitter, and that he has been in the position since 2014. He reported that prior to this job he worked as a plumber for 6 months and prior to that he had about a year when he was not working and did not want to leave the house. The Veteran reported anxiety symptoms of nightmares, intrusive memories, insomnia irritability, psychological distress and physiological reactivity when exposed to trauma cues, avoidance of trauma triggers, hypervigilance, startle, difficulty with concentration, detachment from others, decreased interest in meaningful activities. The Veteran experienced nightmares occurring about twice a week and prior to treatment with Prazosin were occurring 4-5 times a week. The Veteran estimated that he gets about 5 hours of sleep a night and that insomnia occurs every night. The Veteran reported he wakes about 3-4 times a night without difficulty returning to sleep. He reported symptoms of acute anxiety including a racing heart, difficulty breathing, sweating, shaking, feeling of being hot, fear of losing control and a pounding heart. He reported symptoms occurring about 1-2 times a week and prior to treatment that were occurring about 2-4 times a week. The Veteran reported difficulty with road rage and has been in confrontations on the road. He reported he would never intentionally harm himself, but he engages in behaviors which are concerning for his safety. The Veteran stated that about once a week he was experiencing anxiety to the point that he needed to take about a 10 minute break from work due to the amount of workload, delegation and timelines. With medications and treatment the Veteran reported he was experiencing panic attacks about 1-2 times a week and he reported that he wants to stay home, and he feels safest at home, where he did not have to act differently like he does in social situations. He stated that he enjoyed activities outside the home with his extended family such as the beach, park, and swim events. He reported he enjoyed reading, barbequing, playing basketball with his daughter, riding his motorcycle and exercising. He stated he was great with his friends and that his wife assisted him in managing his mediations and the family finances. He stated he had difficulty recalling tasks that he needed to complete. The Veteran reported symptoms of depressed mood, anxiety, panic attacks occurring more than once a week, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events. In July 2017, during treatment at the San Diego VAMC, the Veteran reported use of CBD oils for his PTSD symptoms as well as chronic pain. He noted that he still has nightmares and will have periods of anxiety but that he has learned to control his anxiety. See July 2017 Treatment Record, received in August 31, 2017 CAPRI records. Most recently, the Veteran was afforded a VA examination in January 2018. At that examination the examiner confirmed the Veteran’s diagnosis of PTSD. The examiner found the Veteran had occupational and social impairment with an 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 reported that he currently had good relationships with both his parents. He got along with siblings, and his children. As recreational activities/hobbies, he watches television and listens to podcasts. He also spends time with family and spends time with his children’s activities. He notes his relationship with his wife to be “fair,” although they have their ups and downs. The Veteran also stated he has some friends, and that he is always a good employee. The Veteran denied any hospitalizations, suicide attempts or violent behavior. The Veteran reported symptoms of anxiety, chronic sleep impairment and difficulty adapting to stressful circumstances. At the San Diego VAMC the Veteran had treatment in October 2017 for his PTSD, at which time he noted he was grumpy, irritable and had a short fuse. He reported he was worried about loss of income, limited mobility and worried about his future. He stated that he had slow progress and still had nightmares, ongoing anxiety and unwanted thoughts. See October 2017 treatment record in CAPRI records received in September 2018. He was also treated in March 2018 for his PTSD and reported he was still somewhat hypervigilant, had difficulty sleeping and still had frequent nightmares that would wake up his wife, but with the Ambien he was able to sleep through them and not remember. See March 2018 treatment record, received in CAPRI records received in September 2018. In March 2018 he was afforded a mental status examination, at which point he had normal mood, speech and thought content, no suicidal or homicidal ideations and low suicide risk. Recently, in November 2020, the Veteran was hospitalized for two days in the context of worsening depression and interpersonal stressor. On his admission report, he explained that he is hopeless at the moment and explains he does not feel safe to leave the hospital. See November 13, 2020 Treatment Record, in CAPRI records received on November 24, 2020. He noted he does not have any plans to hurt himself or anyone else but that he is aware of his irritability and he has potential to act out irrationally. He reported specifically that he began feeling more irritable, reclusive, and ramped up, erratic and forgetful around the beginning of November 2020. He became more argumentative and that he always feels hypervigilant, like he needs an exit strategy. He denied any suicide attempts and noted he saw his doctor and was on medication for his anxiety. See November 2020 Treatment Record, in CAPRI records received on November 24, 2020. He noted he needed to be in the hospital to heal and though nothing is fixed he feels that he is under much greater control now. Upon careful review and consideration of the evidence of record the Board finds that the objective medical evidence and the Veteran's statements regarding his symptomatology more nearly approximate symptoms associated with a 30 percent disability evaluation productive of occupational and social impairment, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Neither the lay nor the medical evidence of record during this timeframe more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 50 percent disability evaluation or higher based on occupational and social impairment with reduced reliability and productivity. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. There is no indication that the Veteran's disability has been characterized by flattened affect; circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impaired abstract thinking; or difficulty in establishing and maintaining effective work and social relationships. The Veteran has reported some difficulty with his memory. See, e.g., VA examination May 2015. The May 2015 VA examiner noted some difficulty with mild memory loss. However, this appears to be an isolated report. On the other hand, during the January 2018 VA examination the Veteran noted he was always a good employee with a good work ethic and ability to perform and did not note any memory loss. See January 2018 VA examination. Therefore, while there was one instance of the Veteran having mild memory loss, there is no indication that the Veteran's memory impairment was more than mild for the duration of the appeal period. The Veteran has also recently been hospitalized for his PTSD symptoms in November 2020. See November 2020 Treatment Record, in CAPRI records received on November 24, 2020. The Board finds that such was for the purposes of mood stabilization and does not reflect the Veteran had consistent disturbances of motivation or mood, as he was discharged two days following his admission. The Board notes that Veteran has remained employed for the period on appeal. During the most recent VA examination, the Veteran reported that his employment evaluations have been good. He has maintained a good relationship with his family. The Veteran has reported that he has generally been active socially with some brief periods of isolation after his discharge from service. During the appeal period he has been married and described his marriage as good. He has reported having friends. In summary, the evidence of record does not show that a disability rating in excess of 30 percent is warranted for the Veteran's PTSD. The Veteran’s overall symptomatology is not of sufficient severity, frequency, and duration to result in a higher rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran's symptoms appear consistent with no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Thus, the criteria for a finding of a 50 percent evaluation or higher are not met during this period, and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, 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.