Citation Nr: 21029513 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 14-07 808 DATE: May 13, 2021 ORDER A rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran had active service from September 1968 to September 1970; he has been rated at 100 percent disabled based on unemployability since December 2011. 2. For the entire period on appeal, PTSD has been manifested by subjective complaints of avoidance of crowded places, impaired memory and concentration, sleep disturbance, hypervigilance, and being easily agitated, among others; objective findings include panic attacks more than once a week, disturbances of motivation and mood, normal speech and communicative ability, intact and unimpaired judgment and insight, an ability to understand directions, a generally labile, normal, and euthymic affect, no impairment of short and long term memory, and no impaired abstract thinking. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.59, 4.130, Diagnostic Code (DC) 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In August 2019, the Board denied the appeal for a rating in excess of 30 percent for PTSD. The Veteran appealed to the Veterans Claims Court. In July 2020, the Court Clerk granted a Joint Motion for Partial Remand (JMPR) and remanded the issue to the Board for consideration. In December 2020, the Board remanded the appeal for further development in accordance with the JMPR, to include obtaining signed release forms to enable the RO to request updated medical records from his private clinician and any other relevant treatment providers. A new Form 21-4142 was subsequently sent to the Veteran; however, the release form was not returned. The case has now been returned to the Board for further appellate action and the decision will be made based on the evidence of record. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Acquired psychiatric disorders, including PTSD, are evaluated under a General Rating Formula for Mental Disorders ("General Rating Formula"). Under the General Rating Formula, a 30 percent rating is warranted 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 normal conversation), due to symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment and mild memory loss, to include forgetting names, directions, and recent events. A 50 percent rating 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 occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Turning to the medical evidence, a December 2011 VA examination found that the Veteran had panic attacks which occurred more than once a week. In subsequent medical treatment notes, clinicians consistently found that he had weekly panic attacks. Therefore, panic attacks occurring more than once a week have been shown. Similarly, the Veteran has had difficulty establishing and maintaining work and social relationships. To that end, a December 2011 VA examiner found that the Veteran demonstrated markedly diminished interest and participation in significant activities and difficulty establishing or maintaining effective work and social relationships. In a January 2012 Social Security Administration (SSA) record and February 2012 physician's letter, his son reported that the Veteran had fewer friends than he did in previous year, and a clinician affirmed that he did not socialize and was severely compromised in his ability to sustain social or work relationships. Most recently, a May 2019 examiner found that he had no friends and only talked occasionally with his sons. As such, the record demonstrates difficulty establishing and maintaining work and social relationships. Further, the Veteran exhibited disturbances of motivation and mood. In this regard, in a February 2011 medical treatment note and January 2012 SSA function report, he described having low energy and little interest in doing things, being easily angered and agitated, and feeling reluctant to attend functions with large numbers of people present. A December 2011 VA examination found that he was easily agitated, startled, and provoked into anger and a private clinician reported in a February 2012 letter that anger, fear, and sadness "[came] upon him without his understanding why." Therefore, disturbances of motivation and mood have been shown. However, the Veteran has not demonstrated circumstantial, circumlocutory, and stereotyped speech, impaired judgment. In this regard, multiple VA examinations, medical treatment notes, and SSA records found that the Veteran's speech and communicative ability were normal, his judgment and insight were intact and unimpaired, and that he was able to understand directions, aware of problems and roles, understood facts, drew conclusions and was able to problem solve. Therefore, circumstantial, circumlocutory, and stereotyped speech, impaired judgment, and difficulty understanding complex commands have not been shown. Similarly, a flattened affect has not been consistently shown. To this end, while the record contains two isolated reports of a flat affect, the VA examinations and medical treatment records show that the Veteran's affect was generally described as labile, normal, and euthymic. Therefore, a flattened affect has not been established. As to impairment of short and long term memory, the records reflect that the Veteran's working memory and recent memory were impaired. He said that he could not remember what he read, got lost when traveling, and needed to hear things more than once to understand. In November 2014 and May 2019 VA examinations, he described problems forgetting his travel route for work despite driving it on multiple prior occasions, and similarly not remembering where he put items and conversations he had with others. While a May 2019 examiner noted that the Veteran had significantly difficulty remembering instructions and details of work assignments and tended to skip from one task to another without completing the prior task, the examiner determined that his memory problems did not constitute an impairment of short and long term memory. Therefore, the medical evidence does not establish an impairment of short- and long-term memory. Next, impaired abstract thinking has not been shown. Specifically, treatment notes and VA examinations consistently document logical, sequential, and organized thinking, as well as a linear, goal-directed thought process. While a May 2019 examiner found that his thought process was tangential and observed that he easily veered off topic, the examiner did not find that this demonstrated impaired abstract thinking. As such, the medical evidence does not reflect impaired abstract thinking. Based on the above, a rating in excess of 30 percent for PTSD is not warranted appeal. In this regard, the VA examinations, medical treatment notes, and SSA records found that the Veteran had panic attacks more than once a week, difficulty establishing and maintaining work and social relationships, and disturbances of motivation and mood. However, his speech and communicative ability were normal, his judgment and insight were intact and unimpaired, and he was able to understand directions. Moreover, his affect was generally labile, normal, and euthymic and he exhibited neither an impairment of short and long term memory nor impaired abstract thinking. Accordingly, the medical evidence does not support an increased rating. The Board has considered the lay statements of the Veteran and his family describing the current severity of his PTSD. Lay witnesses are competent to report symptoms because this requires only personal knowledge as it comes to them through their senses; however, they are not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of his PTSD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which his PTSD is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by his PTSD and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the subjective complaints of increased symptomatology raised by the Veteran and his family. Consideration has been given to assigning staged ratings for the Veteran's PTSD. However, at no time during the periods in question has the disability warranted higher schedular ratings than those assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Spigelman, 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.