Citation Nr: 21023539 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 10-36 777 DATE: April 20, 2021 ORDER Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The most probative evidence of record does not show that the Veteran’s PTSD manifests in symptoms more severe than those most closely reflecting an occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to March 1970. This matter comes to the Board on appeal from an April 2008 rating decision. The matter was remanded by the Board in February 2014, and then denied in an October 2017 Board decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and a June 2018 Joint Motion for Partial Remand (JMR) was granted by the Court, vacating the October 2017 denial and remanding to the Board for further consideration. The matter was then remanded by the Board in April 2019. The matter now returns to the Board for appellate consideration. Entitlement to an initial disability rating in excess of 30 percent for PTSD is denied. The Veteran contends that his PTSD symptomatology most closely approximates the severity contemplated by a higher rating. The Veteran’s PTSD is rated at 30 percent disabling from September 10, 2007. The relevant period for appellate consideration is from that date. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which 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. 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). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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. Consideration of the appropriateness of a staged rating, meaning assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others, is required for increased rating claims, irrespective of whether it is an initial rating at issue or instead an established rating. See Hart v. Mansfield, 21 Vet. App. 505 (2008). As such, the Board has considered whether different ratings for different periods of time, based on the facts found, are warranted throughout the appeal. The Veteran’s PTSD is evaluated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). Pursuant Diagnostic Code 9411 for rating PTSD, a 30 percent rating 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent evaluation is for application when 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; and memory loss for names of close relatives, own occupation, or own name. Id. Turning to the medical evidence of record, an April 2008 VA examination showed the Veteran reporting he had two prior failed marriages and had no children. He reported that his social relationships included some golfing and fishing friends and four close friends. He reported a history of suicide attempt in 1976 when he drove into a tree and was in a coma for two weeks with head, arm, and chest injuries. Regarding a history of violence, he reported gang related violence after getting out of active service due to being “picked on” for being in Vietnam. He reported drinking about six beers daily and denied any other substance use. The examiner noted the Veteran appeared clean and casually dressed. His psychomotor activity and speech were unremarkable. His attitude was cooperative and attentive, and mood was neutral. The Veteran’s attention was noted to be intact and the Veteran was able to do serial 7’s and spell a word forward and backward. The Veteran was noted as oriented to time, person, and place and had unremarkable thought process and content. There were no delusions or hallucinations and the Veteran was noted to have average intelligence. The examiner noted the Veteran understood the outcome of his behavior and understood he had a problem. The examiner noted the Veteran’s chronic pain resulted in poor sleep, improved with medication. The Veteran reported occasional nightmares and intrusive thoughts that were not very frequent. The examiner noted the Veteran did not have inappropriate behavior, interpreted proverbs appropriately, and did not have obsessive or ritualistic behavior. There was no presence of homicidal or suicidal thoughts and the extent of the Veteran’s impulse control was good. The examiner noted the Veteran did not have any episodes of violence and had the ability to maintain minimum personal hygiene. The Veteran had no problems with activities of daily living. The Veteran had normal remote and recent memory but had mildly impaired immediate memory. The Veteran reported that he was forgetful of tools and had to look for them at times at his mechanic job. The Veteran had reported that at times, he became confused during work and made errors in his work due to being absent minded, making the same mistakes despite knowing better. The examiner noted the Veteran had intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event and made efforts to avoid thoughts, feelings, or conversations associated with the trauma. The Veteran reported feeling of detachment or estrangement from others and had difficulty falling or staying asleep and had difficulty concentrating. The examiner noted that the Veteran was dealing in an adequate manner in social symptoms with occasional episodes of dysphoric mood mainly related to his medical problems. The April 2008 VA examiner noted the Veteran was capable of managing financial affairs. At the time of examination, the Veteran was working part-time as an auto mechanic for more than 20 years. During the last 12-month period, the Veteran lost one week from work. His last occupation since discharge or since the last examination was as a cook. The examiner diagnosed PTSD. The examiner noted the Veteran’s PTSD symptoms appeared to be in good remission at the time of examination and that his main stressor was his medical problems. The examiner further noted the Veteran had not been treated for his PTSD and did not appear to be in need of treatment at the time. The examiner noted the Veteran’s PTSD signs and symptoms were transient or mild and that decreased work efficiency and ability to perform occupational tasks only occurred during periods of significant stress. A July 2008 private psychological evaluation, showed the Veteran reporting that he had just retired from work. The Veteran reported that he got along well with his co-workers before retirement and noted that since he was blunt in the past in telling people that he did not want to talk about Vietnam, everyone accepted it. Regarding startle reaction, the Veteran stated that any loud noise or explosion at work startled him and that some of his co-workers sometimes banged a hammer to purposely startle him. The Veteran reported that in both of his past marriages he “would snap, see red, and go into a rage” and beat them “real bad.” He reported that since his last divorce in 1985, he remained single since he found that he did not think he could handle anyone and he had a problem getting along with wives due to his anger. The Veteran reported that he had lost some friends due to his anger and irritability. He stated that one of his former wives indicated that she was scared of him and that both of his former spouses, his brother, and other friends had advised him that he had an anger problem. He disagreed with this characterization but later stated in the evaluation that he believed the military made a man out of him with a few side effects, to include a temper. The Veteran also acknowledged he had two to three driving under the influence arrests during the early 1970s after he was discharged from active service. Regarding his current mental status, the July 2008 reviewing psychologist noted the Veteran was on time for the evaluation and was well-groomed, clean, and neat in appearance. Clothing was casual and appropriate for the occasion and Florida weather. The examiner noted the Veteran was friendly and cooperative and appeared to make a sincere effort to respond without malingering, deception, or defensiveness. Speech was spontaneous, clear, and within normal limits for rate, volume, and inflection. Thought content and flow of ideas was logical, linear, and goal-directed. The Veteran was alert and oriented to person, place, time, and circumstance. His short and longer term memory recall was noted as good and on abstract reasoning tasks, the Veteran showed a concrete level of reasoning. The Veteran was cognizant of his previous suicide attempt but congruently denied current thoughts of dying or suicide. During evaluation, his mood and affect was noted as somewhat depressed and anxious. He reported being generally worried about gas prices, the economy, and the president’s handling of the Iraq war. The Veteran reported his appetite was good and that he did not have any sleep problems. He attributed his improved sleep to the effects of prescribed pain medication and muscle relaxants. The provider noted that besides suppression of thoughts and feelings, the Veteran appeared to be using his denial of his anger/irritability and his alcohol use, to minimize the extent and impact of his Vietnam related dysfunction. After additional testing, the provider noted the Veteran score results suggested a borderline level of depression and anxiety. The provider diagnosed moderate PTSD. The Veteran attended another VA examination in April 2016. At examination, the Veteran reported he had been renting a house and living in Costa Rica for the past one and a half years and was residing with a romantic female partner. The Veteran spoke positively of the relationship and noted that his brother’s suicide three years prior contributed to his decision to relocate to Costa Rica. He reported having retired after receipt of SSA and VA benefits. The Veteran was not currently receiving mental health treatment. The Veteran’s alcohol consumption was at a similar level to the previous VA examination. The Veteran appeared appropriately dressed and behaved in a cooperative way. The Veteran’s eye contact was noted as consistent and the Veteran’s speech was understandable. The examiner noted the Veteran provided information in a coherent manner and there were no significant deficits in the Veteran’s memory noted. The Veteran maintained adequate emotional control about the assessment process and noted that no psychotic symptoms were displayed. The examiner estimated an average level of intelligence and that he was capable of managing his financial affairs. The Veteran was administered a depression inventory, not included in the examiner’s report, but present in the VA treatment records. The Veteran indicated that he had thoughts of killing himself, but would not carry them out. The examiner indicated in his report that the Veteran reported a history of suicidal ideation but that he denied any current intent. The Veteran experienced symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The examiner also noted symptoms of irritability, distractibility, and rumination. The Veteran experienced persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead to the individual to blame himself or others; persistent negative emotional state; feelings of detachment or estrangement from others; irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; hypervigilance; and sleep disturbance. After examination, the examiner diagnosed PTSD and likely mild alcohol use disorder. The examiner also diagnosed adjustment disorder with mixed anxiety and depressed mood that resulted from multiple current life stressors that contributed to anxiousness, worry, sleep disturbance, and low mood. The examiner found that the Veteran had an 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. Post-service treatment records during the period on appeal showed the Veteran was consistently alert and oriented to person, time, and place. The Veteran also denied receiving mental health treatment and denied suicidal or homicidal ideation or plan, except at the April 2016 depression inventory. There was no indication of panic attacks. SSA treatment records noted in October 2008 that the Veteran was alert, oriented to time, place, and person. The October 2008 SSA record also noted the Veteran had no memory deficit with normal affect and no evidence of depression. The provider also noted there was no suicidal ideation at the time of examination and that the Veteran’s cognitive functioning and stream of thought were adequate. October 2008 SSA records also noted the Veteran’s disability was based on his chronic obstructive pulmonary disease and osteoarthritis. VA treatment records in March 2009, February 2011, and February 2012 noted mental health screening results were negative for depression. VA treatment records in October 2013 noted the Veteran was positive for depression and anxiety following the suicide of his brother. However, another VA mental health screening in July 2015 showed the Veteran was negative for depression. A mental status screen from January 2017 showed no thoughts of homicidal or suicidal ideation, and a PTSD screen from October 2018 showed the same. A May 2019 PTSD screen showed the Veteran reporting nightmares, but denied suicidal ideation The Veteran was negative for suicidal ideation again in October 2019 and November 2019. Analysis While the evidence of record does show some disturbances of motivation and mood as noted in the April 2016 VA examination, the evidence indicates, at most, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In this regard, the Board observes that the April 2008 VA examiner specifically noted that the Veteran’s PTSD produced only occupational and social impairment due to mild transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. Although the Veteran reported in the July 2008 private PTSD psychological evaluation his decision to remain single after his two prior divorces due to his anger, he reported he was able to get along with his co-workers before his retirement and that he had golfing and fishing friends, as well as four close friends. In the April 2016 VA examination, the Veteran reported being in a positive romantic relationship of a year and that he lived with his romantic female partner. The Board acknowledges the Veteran’s reports that his anger had cost him some friends; however, this social impairment is consistent with a 30 percent rating. Specifically, the Veteran did not report, and the evidence did not show, any panic attacks, and nothing approaching abnormal speech, understanding, thinking, or judgment has been demonstrated or even asserted, nor any mention of flattened affect. There is indication of mild memory loss, however, the Veteran’s mild memory loss is not so severe to be considered as impairment of short-and long-term memory to warrant a rating in excess of 30 percent. In response to the findings of the June 2018 JMR, the Board acknowledges that the Veteran indicated prior suicidal ideation and one instance of thoughts of killing himself in a depression inventory in April 2016. The Veteran also had a suicide attempt many years before the appellate period. However, aside from the singular notation, he has consistently denied suicidal ideation(s), intent, or plan. The facts of this case appear to be distinguishable from Bankhead v. Shulkin, 29 Vet. App. 10 (2017) in which the United States Court of Appeals for Veterans Claims (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 unique 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. Bankhead, 29 Vet. App. at 19-23. Initially, the Board notes that VA treatment records overwhelmingly reflect that the Veteran has denied suicidal ideations. He denied suicidal ideation on VA examination in 2008, and the VA examiner in 2016 did not choose to classify the Veteran’s statements as suicidal ideation, despite the answers to the depression inventory. This case is distinguishable from Bankhead because, unlike in Bankhead, the singular notation of suicidal ideation (passive or otherwise) during the appeal by itself or when considered with other symptoms, did not cause the level of occupational and social impairment associated with a 70 percent disability rating. In particular, the record does not reflect symptomatology of deficiencies in most areas, particularly, work, judgment, thinking or mood such that his symptoms equate to the severity, frequency and duration of near continuous panic or depression, impaired impulse control, obsessional rituals or spatial disorientation. Based on the facts of this case, the sporadic instance of reported suicidal ideation do not more nearly approximate occupational and social impairment with deficiencies in most areas, but rather reflect a lesser degree of impairment that is contemplated by the 30 percent rating assigned herein. Post-service treatment records during the relevant period on appeal had consistently noted the Veteran was alert, cooperative, and neatly dressed. Furthermore, there is also no evidence that prior to his retirement, the Veteran had significant decreases in work efficiency, only some mild memory loss. Instead, the Veteran reported during the April 2016 VA examination that he retired due to his receipt of benefits by SSA and VA after he was diagnosed his prostate cancer and October 2008 SSA records noted the Veteran’s disability was based on his chronic obstructive pulmonary disease and osteoarthritis, not specifically due to his PTSD symptoms. Overall, the Veteran’s symptoms throughout the relevant period on appeal tend to reflect more closely to mild difficulty in occupational and social functioning and more closely approximates the currently assigned 30 percent rating. The Board acknowledges that the Veteran is competent to report symptoms of a psychiatric disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to identify a specific level of impairment of a psychiatric disability according to the appropriate diagnostic code. Competent evidence concerning the nature and extent of his service-connected psychiatric disability has been provided by VA medical professionals who have examined and treated him. The medical findings directly address the criteria under which the disability is evaluated. The Board finds these records to be competent and probative evidence of record, and therefore is accorded greater weight than the Veteran’s claim that he warrants a higher rating. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of his service-connected PTSD. Moray v. Brown, 2 Vet. App. 211 (1993); 38 C.F.R. § 3.159 (a)(1) and (2) (2016). The Board further acknowledges the March 2021 Appellate Brief wherein the Veteran asserts that his condition has worsened since the last VA examination in April 2016. The Board notes that the mere passage of time does not render an old examination inadequate. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). Reexaminations are required if the evidence indicates that there has been a material change in a disability or that the current rating is incorrect. See 38 C.F.R. § 3.327. The only indication in the record of possible worsening is the Appellate Brief with the singular sentence “the appellant maintains that the severity of his PTSD has worsened since the last compensation examination nearly 5 years ago.” The Board notes that this is the first and only such contention, and it is not supported by the medical evidence of record. As noted above, a mental status screen from January 2017 showed no thoughts of homicidal or suicidal ideation, and a PTSD screen from October 2018 showed the same. A May 2019 PTSD screen showed the Veteran reporting nightmares but denying suicidal ideation. The Veteran was again negative for suicidal ideation in October 2019. Finally, a November 2019 review of systems for an unrelated visit indicated that the Veteran was negative for depression, anxiety, and suicidal thoughts. The Veteran is considered competent to report symptoms, but less so to report their severity. The evidence since the April 2016 VA examination does not show new symptoms or reports of increasing severity. The record does not show a worsening of symptoms and a new examination is not warranted Given the above, the Board finds that the most probative evidence of record does not show that the Veteran’s PTSD manifests in symptoms more severe than those most closely reflecting an occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In reaching its decision, the Board considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against the Veteran’s claim for an increased initial evaluation, as the Veteran’s symptomatology most closely approximates that contemplated by a 30 percent evaluation. Therefore, an initial evaluation in excess of 30 percent is not warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). R. Costello Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.