Citation Nr: 21031198 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-40 013A DATE: May 20, 2021 ORDER An initial rating of 50 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his PTSD symptoms have been shown to cause reduced reliability and productivity for the entire appeal period, but have not been shown to cause occupational and social impairment, with deficiencies in most areas, or total social and occupational impairment. CONCLUSION OF LAW The criteria for an initial rating of 50 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to April 1967 and from April 1967 to December 1969. It is noted that the Veteran has received countless medals for his heroism in service, including the silver star and the distinguished flying cross. The Veteran provided testimony before the undersigned Veterans Law Judge (VLJ) at an October 2019 Board hearing. A complete transcript of record. An initial 50 percent rating for PTSD is granted. The Veteran asserts that he is entitled to a 70 percent rating for his service-connected PTSD. VA received the Veteran's service connection claim for PTSD on March 3, 2017. A subsequent May 2017 rating decision granted service connection for PTSD and assigned an initial disability rating of 30 percent, effective the date of claim. The Veteran disagreed with the assigned rating and this appeal ensued. As such, the relevant period begins on March 3, 2017. The Veteran's PTSD is rated under Diagnostic Code 9411 and his 30 percent rating was based on depressed mood, suicidal ideation, and chronic sleep impairment. Under the General Rating Formula for Mental Disorders, a 30 percent rating is assigned when a veteran's PTSD 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, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned when a veteran's PTSD 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-term 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 PTSD 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 worklike setting); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a veteran's PTSD 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 determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Based on the evidence of record, the Board finds that the Veteran's PTSD symptoms resulted in occupational and social impairment with reduced reliability and productivity, thus warranting a 50 percent rating. The Veteran was afforded a VA examination in May 2017. After an in-person examination and a review of the Veteran's claims file, the examiner found that he had a diagnosis for PTSD and provided a positive nexus opinion. The Veteran reported experiencing survivor's guilt. He reported that he retired because he was experiencing problems with fatigue, insomnia, and nightmares. He reported that he had a good relationship with his wife, but admitted becoming angry frequently. The examiner noted the following PTSD symptoms: depressed mood, suicidal ideation, and chronic sleep impairment. The examiner found that the best summary of the Veteran's level of impairment was occupational and social impairment due to mild or transient symptoms, consistent with a 10 percent disability rating. The Veteran provided credible testimony at the October 2019 Board hearing. He testified that he did not have an interest in a lot of things and only liked to play golf, which he had reduced to once a week. He reported that most of the time, he just hung around the house. He testified that he had difficulty with being in large crowds; if he knew the people there, it was fine for the most part, but when there were many people he did not know, it was very uncomfortable. He reported having a very hard time at the airport because it was so crowded. He also reported that his wife goes to church every Sunday, but he did not like to go. He also testified that he would get very upset while driving and dealing with traffic. He stated that he thinks his symptoms have gotten worse since he stopped working because he has more time to think. The Veteran also testified that he received treatment at the Vet Center and indicated that additional evidence would be submitted, in the form of outstanding treatment records. He indicated on the record that he would waive Agency of Original Jurisdiction (AOJ) review. The VLJ held the record open for 30 days, so that the Veteran and his representative could get those records into his claims file. The Board notes that the Veteran's treatment records from Vet Center have been submitted and associated with the claims file and VA received the Veteran's written request for a waiver of AOJ review. As such, the Board will review the Veteran's Vet Center treatment records and proceed with adjudication. The Veteran's Vet Center treatment records generally track with his testimony. For example, the treatment records show that he was hypervigilant in crowds, had road rage incidents, and had increased symptoms since he retired. He reported that he had a difficulty forming loving and positive relationships with others and noted that although his wife has been supportive, there was a lack of intimacy. He did report that he was enjoying retirement a bit more because he has worked through some of his issues from being in Vietnam, but also reported that his symptoms have somewhat worsened because he has more time to think about things. He reported that he sometimes he thinks about working again to distract himself. He consistently reported survivor's guilt, nightmares, intrusive memories, sleep disturbance, isolation, and helplessness. His treating mental health professional reported that he did not have active suicidal thoughts, but he had endorsed chronic passive death wishes for years. He did state that taking one's life was a mortal sin and the mental health professional noted that his religion was a protective factor. He reported that he was involved in a road rage incident when he could not control his anger. He stated that after a car almost crashed into his and after the other driver blew his horn at the Veteran, he took off his seatbelt and started to get out of the car, until his wife talked him out of it. He also reported that he did enjoy golfing, but cut it to once a week because he was trying to participate in activities that did not involve drinking because his golf outings would invariably involve drinking afterwards. Aside from his golf outings, he reported that he otherwise avoided his friends and when they would keep asking him to go out with them, would make excuses as to why he could not. He reported that his wife was getting tired of him refusing to go out with his friends. His treating mental health professionals reported the following symptoms during the period on appeal: irritability and decreased frustration tolerance, anhedonia, amotivation, nightmares, sleep disturbance, intrusive memories, grief, emotional numbing, anxiety, difficulty with authority, isolation, difficulty with crowds, despair, helplessness, and loneliness. The Veteran also submitted a letter from the director of the Vet Center who wrote that the Veteran's affect was flat and blunted and he feels detached and estranged from everyone to include his family. He has impulse control and sleep problems. He avoids people, places, and activities that remind him of Vietnam which leaves him isolated. The director suggested that the Veteran's PTSD prevented him from maintaining meaningful employment. Here, the Board finds that the Veteran has not shown most of the enumerated symptoms associated with a 50 percent rating, such as flattened affect, stereotyped speech, panic attacks, difficulty in understanding complex commands, memory impairment, and impaired abstract thinking. Nevertheless, the Board finds that his overall symptomatology warrants an initial 50 percent rating. The Board notes that he has shown three symptoms associated with the rating criteria for a 50 percent rating, impaired judgment, disturbances of motivation and mood, and a difficulty in establishing and maintaining effective relationships. For example, he testified that he often got upset while driving and his road rage has been corroborated by the contemporaneous evidence of record. He reported that after almost getting into an accident, he took his seatbelt off and started to get out of the car, before being stopped by his wife. Such actions by a 70-year-old shows that PTSD has caused impaired judgment. Further, his treating mental health professionals have consistently noted that he has amotivation and anhedonia, which are symptoms consistent with a finding of disturbances of motivation and mood. Regarding a difficulty with effective relationships, the Veteran has shown that he is socially isolative. He reported to his treating mental health professionals that he avoided spending time with his friends, which frustrated his wife. He also reported that he did not like to go to church or other public places because he did not like to be around people he did not know. He did report golfing once a week, with people he has played with for years. His wife testified at the October 2019 Board hearing that it was very tough dealing with the Veteran after he had a couple of drinks. The Board also notes that the Veteran reported that he is close to his wife and that she is supportive, but that there was a lack of intimacy. He also has three children, but he did not discuss the kind of relationship he had with them at the May 2017 VA examination or during his treatment at Vet Center. Here, based on the foregoing, the Board finds that the Veteran has shown a difficulty with establishing and maintaining effective relationships. The Veteran generally denied suicidal ideation and other symptoms consistent with a 70 percent rating. The evidence also reflects that the Veteran has additional symptomatology that is not specifically enumerated in the rating schedule, including survivor's guilt, frustration, difficulty with authority, emotional numbing, intrusive memories, and helplessness. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Board finds that these symptoms, in conjunction with those enumerated in the schedule and experienced by the Veteran, support a finding of occupational and social impairment with reduced reliability and productivity. That said, the Board finds that the criteria for a higher rating of 70 or 100 percent is not warranted at any point during the appeal period. In this regard, the available lay and medical evidence indicate that the Veteran has maintained a close relationship with his wife, albeit with some difficulty, and he has maintained relationships with golf buddies, although not effective, supports a finding that his PTSD symptoms did not cause an inability to establish and maintain effective relationships or total impairment. Further, he has not otherwise endorsed symptoms that would cause deficient or total impairment in his social or occupational functioning. While the Veteran need not suffer from all of the enumerated symptoms in the rating criteria to establish entitlement to a higher rating, the symptoms he does have must cause the corresponding level of social and occupational impairment of the higher ratings, which has not been demonstrated in this case. The Director of the Vet Center wrote a letter in October 2019 describing some of the Veteran's PTSD related symptoms, suggesting that the condition was severe. The Board has closely reviewed the letter, but finds that the weight of the evidence, including the treatment records, supports a 50 percent rating. As noted, the Veteran has difficulty maintaining relationships, but he has nevertheless maintained some relationships. While they may not be as strong as he would like, a 50 percent rating is assigned when PTSD causes disturbances of motivation and mood and creates difficulty in establishing and maintaining effective work and social relationships. Conversely, a 70 percent rating contemplates the inability to establish and maintain effective relationships. Here, the Veteran continues to golf with friends and maintains a relationship with his very supporting wife. As such, he is not found to have an "inability" to maintain relationships. There is no question that the Veteran is deeply impacted by his PTSD and by his horrific memories of Vietnam, but a 50 percent rating is assigned in specific recognition of that impairment. The Board has considered whether the claim should be remanded for consideration of a total disability rating based on individual unemployability (TDIU). Ultimately, the Board finds that such is not required. The Veteran indicated that he stopped work voluntarily, and has considered returning, but chose not to because he does not like the commute through traffic. The Director of the Vet Center suggested that PTSD prevented meaningful employment, but stopped short of saying that the Veteran would be unable to obtain or maintain substantially gainful employment. Accordingly, a remand for TDIU consideration is not warranted. Accordingly, the Board finds that an initial rating of 50 percent, but no higher, is warranted for the Veteran's PTSD. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.