Citation Nr: 21022831 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 20-25 076A DATE: April 19, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to PTSD, has not been shown, nor has total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating higher than 50 percent, for PTSD, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty service in the United States Marine Corps from June 1965 to June 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2018 rating decision, where the Regional Office (RO) granted service connection for PTSD and rated it as 30 percent disabling, effective November 17, 2017, the date VA received the Veteran’s service connection claim. While the claim was on appeal, in an April 2018 rating decision, the RO increased the evaluation to 50 percent, effective November 17, 2017. As this increase does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Initial Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. "Staged" ratings may be appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is in receipt of a 50 percent rating, pursuant to 38 C.F.R. § 4.130, DC 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a 50 percent evaluation 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. A 70 percent evaluation is warranted for 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." The Federal Circuit further noted that "§ 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." Id. Thus, "[a]lthough the Veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment associated with the DC to determine whether an increased evaluation is warranted. As with all claims for VA disability compensation, the Board must assess the credibility and weigh all the evidence, including lay and medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (1997), cert denied, 523 U.S. 1046 (1998). 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. The Veteran contends that he is entitled to an initial rating for PTSD higher than 50 percent. For the following reasons, entitlement to a PTSD rating higher than 50 percent is denied. After a careful review of the record, the Board finds that the Veteran's service-connected PTSD, currently rated at 50 percent, approximates the criteria for a 50 percent evaluation. Relevant Facts The Veteran underwent a VA Initial PTSD Disability Benefits Questionnaire (DBQ) in December 2017. The Veteran reported experiencing nightmares every night. The nightmares are severe and would result in him physically hurting his wife during his sleep that he and his wife can no longer sleep in the same room. The Veteran’s reported symptoms include anxiety, suspiciousness, chronic sleep impairment, and mild memory loss (such as forgetting names, directions or recent events). He also described hypervigilance, exaggerated startle response, efforts to avoid distressing memories, efforts to avoid external stimuli that are reminders of trauma, recurrent intrusive distressing memories, and recurrent distressing dreams related to a traumatic event. The examiner reported that the Veteran was well-oriented and alert. He appeared clean. His concentration, speech and memory were all within normal limits. His thinking was linear and cogent. Judgment appeared good and insight was fair. He reported no suicidal/homicidal ideation, intent or plan, or past attempt. Veteran reported no auditory or visual hallucinations. The examiner reported that the Veteran requires ongoing medical management of symptoms and that he does not appear to pose any threat or danger or injury to self. The examiner opined that the Veteran’s mental disability causes 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 Veteran underwent another VA PTSD DBQ in April 2018. The examiner confirmed a PTSD diagnosis. The Veteran’s symptoms include recurrent, involuntary and intrusive distressing memories of the traumatic events, recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event, avoidance of or efforts to avoid distressing memories associated with the trauma, avoidance of or efforts to avoid external reminders that arouse distressing memories associated with the traumatic event, persistent and exaggerated negative beliefs or expectations about oneself/others/or the world, persistent, distorted cognitions about the cause or consequences of the traumatic events, feelings of detachment or estrangement from others, hypervigilance, exaggerated startle response, sleep disturbance, and disturbance that causes clinically significant distress or impairment in social, occupational or other important areas of functioning. The examiner reported that the Veteran presented as pleasant and cooperative, and casually dressed. He did not seem overly anxious. His mood appeared fair with appropriate affect. He displayed no abnormal behavior. He denied experiencing any suicidal or homicidal ideation. The examiner opined that the Veteran’s PTSD caused 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 examiner also stated that the Veteran’s experience of PTSD is mild, and at worst, moderate. In the March 2019 Statement, the Veteran stated that he continues to have dreams of Vietnam, some so brutal that he fights while he is asleep, and his wife can no longer sleep in the same bed. His dreams are violent, and he has flashbacks of his combat experience in Vietnam. He stated that he is unable to be still; he shakes his legs and twists his hands. An April 2020 letter from Dr. R.M.I. shows he has been treating the Veteran since January 2018. Dr. R.M.I. stated that the Veteran has still presented with severe PTSD and as reported by the Veteran’s wife, the Veteran fights every night in his sleep – and even broke a table once. An April 2020 letter from Dr. T.A.H. states that the Veteran and his wife reported symptoms including night terrors/sleep fighting, vivid nightmares and yelling out at night/reenacting events that occurred during his service in Vietnam. Both the Veteran and his wife explained these PTSD symptoms as chronic and intrusive to their marriage. Dr. T.A.H. stated that it is apparent that the Veteran’s personal life has been significantly impacted by his PTSD symptoms. VA treatment records from the entire period on appeal show PTSD symptoms including night terrors, sleep disruption, hypervigilance, having strong negative beliefs about himself or other people or the world, blaming himself or someone else for his stressful experience, loss of interest in activities that he used to enjoy. The records also show no suicidal/homicidal ideation, no psychosis, normal speech and thought process, good judgment, and the Veteran presenting as appropriately dressed. Legal Analysis and Conclusion After reviewing all of the evidence, the Board finds that the overall social and occupational impairment caused by the Veteran's PTSD best approximates impairment characterized by a rating of 50 percent and not higher. The VA examinations and other medical treatment records for the entire period on appeal show the Veteran has exhibited symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, hypervigilance, intrusive memories and nightmares, disturbances of motivation and mood, and feeling detached from others. The Board finds that this medical evidence shows that the overall impairment caused by the Veteran's PTSD symptomatology approximates occupational and social impairment with reduced reliability and productivity, which is reflected by an initial rating of 50 percent for the relevant period on appeal. The 50 percent rating criteria specifically contemplate the aforementioned symptoms, which include impairment of short- and long-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. See also 38 C.F.R. § 4.7. However, there is insufficient evidence to support a rating higher than 50 percent , as the preponderance of the evidence is against a finding of occupational and social impairment with deficiencies in most areas due to PTSD or total occupational and social impairment due to PTSD. The December 2017 VA examiner and April 2018 VA examiner both opined that the Veteran’s mental disability causes 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 April 2018 VA examiner additionally stated that the Veteran’s experience of PTSD is mild, and at worst, moderate. Moreover, neither examiner found, and no medical records show, that the Veteran was experiencing any symptoms specifically contemplated, or similarly contemplated, under the 70 percent rating of DC 9411, to the requisite levels of frequency, severity, and duration, that would allow for a higher rating of 70 percent. As noted above, the Veteran regularly appeared at VA appointments well-groomed and with good hygiene. He was consistently noted as being alert, socially appropriate, with normal speech and thought process, and as showing good judgment. While the Board acknowledges the Veteran’s reports of experiencing many intense and vivid nightmares and intrusive thoughts about his past trauma, the Board notes that the Veteran has not reported experiencing any delusions or hallucinations or anything similar (see Mauerhan v. Principi, 16 Vet. App. 436, 436 (2002)), in connection with his PTSD, much less to the requisite levels of frequency, severity, and duration, that would allow for a higher rating of 70 percent. See also Vazquez-Claudio, 713 F.3d at 117. The Veteran has denied persistent delusions or hallucinations, and medical evidence of record indicates that he is able to communicate clearly. There is no evidence of psychosis attributable to his service-connected PTSD. There is also no evidence to indicate that he is in persistent danger to himself or anyone else. Notably, the Veteran himself did not assert, that the he is or has been experiencing any symptom specifically contemplated, or similarly contemplated under the rating criteria. Indeed, in making this decision, the Board is mindful that the Court in Vazquez-Claudio has held that psychiatric ratings are symptom driven. See 713 F.3d at 117. In light of the above, the Board finds that the Veteran’s PTSD symptoms, do not demonstrate impairment in most areas, or total impairment, as illustrated by the criteria for 70 percent and 100 percent ratings. The Board has also considered the Veteran's statements and his spouse’s statements regarding his PTSD symptoms and his belief that a higher evaluation is warranted for his PTSD. The Veteran's statements are competent evidence as to the symptoms of his PTSD as this comes to him through his senses. Moreover, his statements are credible to the extent that they are consistent with the medical evidence of the record. However, his statements are not competent evidence as to a specific level of disability according to the appropriate diagnostic codes. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have examined him at various times during the current appeal and who have rendered pertinent opinions in conjunction with the physical evaluations. The medical findings as provided in the examination reports directly address the criteria under which this type of disability is evaluated. The Board, therefore, finds the medical findings to be of a greater probative value as to the current severity of the Veteran's PTSD than his statements. Given such, the Board does not find that a rating of 70 percent or 100 percent, as the record stands, is warranted. The preponderance of the evidence is against a finding of occupational and social impairment in most areas, and entitlement to a rating in excess of 50 percent is denied. K. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, 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.