Citation Nr: 21027971 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 14-42 297 DATE: May 7, 2021 ORDER The claim for an initial disability rating in excess of 30 percent (outside the period of temporary total disability) prior to May 3, 2016, for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT Prior to May 3, 2016, outside the period of temporary total disability, the Veteran's PTSD has not been shown to cause occupational and social impairment with reduced reliability and productivity, or worse. CONCLUSION OF LAW Prior to May 3, 2016, outside the period of temporary total disability, the criteria for an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from January 2008 to April 2013. In March 2018, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In December 2020, the Board specifically denied a rating in excess of 70 percent, while remanding the issue of a rating in excess of 30 percent prior to May 2016 for further development. The requested development has been completed and this matter is returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran asserts that he is entitled to a rating in excess of 30 percent for his service-connected PTSD prior to May 3, 2016. The Veteran has been assigned a temporary total disability rating for PTSD from May 20, 2014, to July 31, 2014, and therefore, this period will not be discussed. The period on appeal is from May 1, 2013, to May 19, 2014, and from August 1, 2014, to May 2, 2016. Under the General Rating Formula for Mental Disorders, a 30 percent evaluation is assigned when a veteran's mental disability causes 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 assigned when a veteran's mental disability causes 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; or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is assigned when a veteran's mental disability causes 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 work like setting); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a veteran's mental disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran's psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency must assign a rating 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 the examination. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Indeed, the symptoms listed under § 4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating. Mauerhan, 16 Vet. App. at 442 (2002). The Veteran's actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). The Veteran's claim was certified to the Board sometime after he filed his formal appeal to the Board in May 2015, so the DSM-5 criteria will be utilized in deciding the Veteran's claim. The Board notes that Global Assessment of Functioning (GAF) scores had been assigned to the Veteran during the course of the appeal. However, being that the Veteran's case will be decided pursuant to DSM-5 criteria, GAF scores will not be considered. See Golden v. Shulkin, No. 16-1208 (Vet. App. Feb. 23, 2018). Turning to the evidence of record, the Veteran was afforded a VA examination in January 2013 at which the VA examiner determined that the Veteran's PTSD caused occupational and social impairment that was best summarized as causing occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. This assessment is consistent with the criteria for a 30 percent rating. The Veteran's symptoms included anxiety, suspiciousness, and chronic sleep impairment. In November 2013, the Veteran reported high baseline anxiety with hypervigilance and avoidance, and "suspiciousness of strangers." He also reported intrusive memories and nightmares of actual traumatic combat experiences. He denied suicidal ideation. He stated he was dealing with self-harm issues, which had stopped in July. A mental status examination revealed the Veteran was alert; oriented to person, place, time, and situation; had good articulation; mood was dysphoric and anxious; affect was congruent with mood; no alterations in thought processes; denied difficulty with focus or concentration; had no alterations in thought content; denied delusions and hallucinations; and had fair insight. Furthermore, the Veteran specifically denied suicidal and homicidal ideation. In September 2014, the Veteran was described as in good spirits. He reported stressor having started school at the University of Michigan, Dearborn, and also working 25 hours a week in communication, a job he enjoyed. A mental status examination revealed the Veteran was adequately groomed, pleasant, and cooperative. There were no psychomotor abnormalities; speech had normal rate and volume; mood was "good" and affect was bright. The Veteran's thought process was linear and without overt paranoia or delusional content. He denied current suicidal or homicidal ideation, intent, or plan. The Veteran further denied perceptual disturbances. His insight and judgement were good, and cognition was grossly intact. In October 2014, the Veteran stated he had been feeling anxious and overwhelmed since his discharge from the psychiatric hospital, but he felt that the hospitalization had helped him to recognize that there was hope for him and he was more optimistic about him and his future than he has in a long time. A mental status examination revealed the Veteran's mood was anxious, affect was congruent with his mood and congruent with immediate thought content. The Veteran's thinking was well-organized, and goal directed. There was no suicidal or homicidal ideation. It was noted he was forward looking. There were no acute risks (no imminent risk of harm to self or others). In December 2014, the Veteran stated he had urges to self-harm but was able to be mindful of the moment and remained effective. He acknowledged that it felt rewarding to not give into his urges and not deal with the repercussions. He stated he was working full time and attending school 9 hours a week. He denied recent or current suicidal and homicidal ideation. Later that month, the Veteran reported some urges to self-harm. He stated he was able to manage with learned techniques, but still felt frustrating and emotional. In January 2015, the Veteran reported that "things have been going well in all areas of his life lately." He enjoyed his duties and schedule for school and at his employment. He stated he did not have problems with self-harm or emotional dysregulation. He denied recent or current suicidal or homicidal ideation. Later that month, the Veteran was noticeably frustrated and angry about stressors or moving, finances, and ongoing angst towards his wife. The VA clinical social worker noted the Veteran was noticeably more hopeful and calmer by the end of the session and that he verbally committed to getting back on track with his treatment. In March 2015, it was noted that the Veteran missed several appointments for VA individual therapy. However, the Veteran was pleased to report that despite his frequent cancellations, lack of any psychotherapy intervention, and multiple stressors in the month of February, he was able to successfully use his skills to manage his emotions and maintain his effectiveness without relapse. He stated that his relationship with his wife was stronger than ever. In September 2015, the VA pharmacy medication management note indicated that the Veteran was cooperative and engaged. His thought process was linear, and goal directed. He did not report any distress or safety concerns. His insight and judgement were good and verbalized understanding of the instructions and feedback. In November 2015, the Veteran was a fulltime student and worked fulltime at a communications company. He stated he had two to three "moments of relapse related to self-harm" over the past few months wherein he strikes himself. He stated that the knowledge he had gained at the VA therapy sessions regarding self-regulation had helped. He denied suicidal and homicidal ideation. He denied flashbacks. The mental status examination revealed good grooming and hygiene; speech had normal rate and volume; no psychomotor agitation or retardation; mood was good; affect was euthymic; thought process was organized; no auditory or visual hallucination; and judgement and insight were good. In December 2015, the Veteran sought treatment at the VA emergency department for mental health. The Veteran's stated he had increased agitation and urges to self-harm as he had been feeling more anxious and stressed recently due to work, final examinations, and arguments with his wife. He started working through his distress with other skills, and he decided to go to the VA emergency department. He denied recent suicidal ideation. Upon interview, the Veteran felt calmer and levelheaded. He was no longer acutely anxious or agitated and denied thoughts of self-harm or harm to others. He stated he wished to return home in order to finish studying for his final examinations. He endorsed ongoing depression with increased appetite, anhedonia, shame and guilt, and low energy. The Veteran's wife denied recent dramatic changes in his mood. He denied auditory and visual hallucination and did not appear delusional. He had occasional paranoia that people were following him when driving. The VA physician noted that were no acute safety concerns given the Veteran's denial of suicidal and homicidal ideation. In February 2016, the VA primary care outpatient note indicated that in December 2015, the Veteran presented to the VA emergency department with racing thought and thoughts of self-harm as a result of several life stressors. After meeting with psychiatrist and a discussion, he felt calm and better able to manage ongoing stressors. He denied current suicidal and homicidal ideation. A couple times a week he endorsed PTSD symptoms although he does not avoid crowded areas and was able to handle startle/anxiety that he once had in relation to such triggers. Here, the Veteran has clearly experienced psychiatric symptomatology as a result of his PTSD. However, the competent evidence of record has not established that the Veteran's PTSD resulted in in occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory, or stereotyped speech, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, or difficulty in establishing and maintaining effective work and social relationships, or worse prior to May 2016. The Veteran has been shown to have anxiety, some thoughts of self-harm, and impaired impulse control. However, the symptoms were not shown to have not risen to the level as contemplated by a 50 percent rating prior to May 2016. There were several instances when the Veteran reported he was able to overcome his urges for self-harm and was more mindful of these moments. Overall, the severity, frequency, and duration of such instances were not such that it more closely reflects a higher disability rating than the current 30 percent. Regarding the Veteran's occupational and social functioning, the Veteran reported frustrations with his marriage and angst towards his wife, but he continuously expressed desire to improve his relationship with her. The record reflects that they have attended therapy sessions together and both were motivated in establishing a better relationship. The VA treatment records do not provide any evidence of difficulties in establishing relationships at the Veteran's place of employment or as a student with his peers. The Veteran stated he enjoyed his role as a teaching assistant and that his employment was going well. The evidence of record does not support that the Veteran had difficulty in establishing and maintaining effective work and social relationships. Given that the Veteran has not indicated that he has a difficulty with either work or social relationships, in conjunction with the VA examiner finding that she did not have difficulty with relationships; the Board finds that the Veteran has not established that he has difficulty in establishing and maintaining effective work and social relationships, or worse. Here, the Veteran's symptoms of depressed mood, anxiety, and suspiciousness are all symptoms contemplated by a 30 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. Again, the Board recognizes the Veteran's sporadic struggles with self-harm and the lone episode of increased agitation and urge for self-harm in December 2015. However, when viewing the disability picture as a whole, the evidence of record does not support a rating in excess of 30 percent prior to May 2016. Significantly, the Veteran was able to maintain employment, attend school fulltime, and engage in hobbies during the period on appeal. The Board does not wish to minimize the Veteran's overall disability picture; however, his overall symptomatology, which includes symptoms that are not listed in the rating criteria, do not rise to a level that would warrant a 50 percent rating or higher. Mauerhan, 16 Vet. App. at 442 (2002). (Continued on the next page) Accordingly, an initial rating in excess of 30 percent for PTSD prior to May 2016 is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.