Citation Nr: 21032434 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-43 763 DATE: May 27, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for PTSD is denied. FINDING OF FACT The Veteran's PTSD is manifested by symptoms resulting in occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, disturbances of motivation and mood, but without occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Naval Reserves with active duty service from February 1985 to May 1985 and from January 1991 to April 1991, including service in Southwest Asia. This matter comes before the Board from a June 2016 rating decision by the Department of Veterans Affairs Regional Office (RO) that reduced a 50 percent rating for PTSD from 50 percent to 0 percent. The Veteran filed a notice of disagreement (NOD) in July 2016, which simultaneously disagreed with the 0 percent rating assigned as well as with the reduction; a statement of the case (SOC) was issued in June 2017 which adjudicated the matter in terms of entitlement to an increased rating, but did include the laws and regulations pertaining to the reduction. The Veteran perfected the appeal by submitting a VA Form I-9 in August 2017. He testified before the Board at a hearing held in March 2020; a transcript is associated with the file. In a May 2020 decision, the Board restored the 50 percent rating for PTSD and remanded the issue of increased rating for PTSD in excess of 50 percent disabling for further development. Such has been completed and this matter is returned to the Board for further consideration. Increased rating in excess of 50 percent for PTSD The Veteran contends that his PTSD is more severe than currently evaluated. His PTSD is presently rated 50 percent disabling per 38 C.F.R. § 4.130, Diagnostic Code 9411 (the General Rating Formula for Mental Disorders (General Formula)). Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102 ; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran's symptoms have not caused the level of impairment required for a disability rating of 70 percent or higher for any portion of the rating period on appeal. Rather, the Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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). A 50 percent rating is assigned when symptoms such 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 cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. The report of a May 2015 VA examination found the Veteran to have a diagnosis of PTSD conforming to DSM-5 criteria. He had 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. His stressors based on fear of scud missiles and chemical attacks met Criterion A (i.e. was adequate to support the diagnosis of PTSD stressor related to the Veteran's fear of hostile military or terrorist activity). The remainder of the PTSD criterion were also found to have been met. Symptoms that actively applied to the Veteran's diagnosis were as follows: Depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationship. No other symptoms were noted to be attributable to PTSD and he was deemed capable of managing his financial affairs. The examination report also noted markedly diminished interest and detachment. Interpersonally, he was married and had 4 children. A few months later in September 2015, the Veteran underwent another VA examination wherein the examiner noted the history of PTSD diagnosed 5 months earlier, but in this instance the examiner diagnosed him with adjustment disorder with mixed anxiety and depressed mood. No other mental disorder was diagnosed. The examiner commented that the diagnosis derived from marital stress. The examiner did not see any evidence of ongoing posttraumatic symptoms to warrant a diagnosis of PTSD or Other Specified Trauma r/o Stressor Related Disorder. Rather the Veteran's symptoms were deemed consistent with situational stress from his strained marriage. Regarding occupational and social impairment, the examiner determined that a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran described his twenty-year marriage as severely strained. He described various long-term stressors on the relationship, including his wife taking people into the home against his wishes, and arguments over spending. He felt that they were likely to divorce in the mid to long-term future. They had four children, with two grown and living outside the house, and two younger teenagers living in the home with them. He reported significant parenting stress and felt sometimes overly irritated by his children. However, he still felt his overall relationship with then was mutually enjoyable. His mother had recently moved into his home, which he was content with, but this caused additional stress with his wife. He was on good terms with his extended family Socially, he enjoyed attending college football games at his alma mater. He had little interest in other kinds of social outings but tolerated them without anxiety problems. Most of his free time each week was taken by family responsibilities. He had a gym membership and worked out, but his motivation for this had dwindled and he now only went once or twice per week. He described his religious faith as a major source of support and attended church services twice a week. Occupationally, he worked full-time for a telecommunications company for 16 years, working in materials management. He stated that the job was going well, indicating that he knew what was expected of him. He denied absenteeism and got along with all but one other employee, but managed to avoid confrontations with that person. His relevant mental health history was negative for any treatment or prescribed medications, although he admitted having taken a Lorazepam given by a family member twice to help his sleep since the last examination. The Veteran denied thinking about his time in Desert Storm in his daily life, but would think about his deployment when he saw friends who served with him. He denied marked physiological or emotional arousal at these times. He could not identify any triggers in day-to-day life even when presented with a list of common ones (e.g., open water, ships, sirens). He did find coverage of the current turmoil in the Middle East and thus he avoided it. He denied exaggerated startle or significant guilt associated with his combat related memories and denied any problems remembering his tour in support of Desert Storm and did not feel his tour changed how he sees himself. He denied hypervigilance or anxiety about safety either inside or outside the home. He reported situational anxiety that was puzzling to him and generally occurred during tense but not dramatic conversations with his wife, and intense conversations with the coworker he has occasional conflicts with. He did not generally have this issue in other situations such as when at church or when tailgating at games. He reported decreasing motivation for socializing in public but denied anxiety consistent with posttraumatic stress. He fell asleep easily but awakened several times each night for no apparent reason but did not stay wake long. He said this pattern has emerged slowly over the past several years. He thought this may be due to mounting stress or aging. He was prone to unsettling dreams but said they were not "horrific." Content varied widely, often derived from something that happened the day before. He rarely dreamed about his combat experiences. Regarding PTSD, although Criterion A was met as he endorsed exposure to actual or threatened serious injury, by directly experiencing the traumatic event (and learning that the traumatic event(s) occurred to a close family member or close friend) there was no response provided to the rest of the PTSD criteria from B through H. For VA rating purposes, his symptoms that actively apply to his diagnoses included depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. He was reported to have other symptoms attributable to PTSD (and other mental disorders) that are not listed above but were not further described beyond the following generally unremarkable mental status findings. Specifically, he was noted to be cooperative, with appropriate hygiene. He was well groomed with seasonally appropriate, clean clothing. He had appropriate eye contact, with good orientation and full level of alertness. His speech was normal, as well as his psychomotor behavior. He had unremarkable thought content and thought processes. His responses were coherent and relevant. No problems were observed with his attention, concentration, or memory. A January 2016 VA examination addendum opinion was obtained to clarify whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. The examiner noted that the Veteran was service connected for PTSD. The VA examination in September 2015 was noted to diagnose adjustment disorder with mixed anxiety and depressed mood. This examiner reviewed the Veteran's VBMS chart and noted that the September 2015 examination did not reveal symptoms of posttraumatic stress sufficient for a diagnosis. The examiner opined that the Veteran did not meet criteria for PTSD under DSM-IV TR or DSM-5 criteria. The diagnosed adjustment disorder represents a new and separate condition that derives from post-military factors. A February 2016 private treatment record revealed that the Veteran described ongoing issues with anxiety for many years. He had not sought treatment for it but would like to now. He reported feeling tired and having no energy most of the time. He felt like he was a failure and felt like he speaks and moves slowly, with little interest in doing things. He felt down and hopeless at times. He had no signs or homicidal ideation. He reported not being able to control his worrying. He had a difficulty relaxing and felt restless and it was somewhat difficult for him to sit still. He became easily annoyed and irritable at times. He frequently felt like something awful was about to happen. He was assessed with anxiety, and mild intermittent asthma without complication. Also in February 2016, the Veteran completed depression and anxiety questionnaires. In the depression questionnaire he reported the following took place more than half the days: Having little interest or pleasuring in doing things; feeling down depressed or hopeless; trouble falling or staying asleep or asleep too much, poor appetite or overeating, moving or speaking so slowly that other people might notice or the opposite being so fidgety or restless that he might have been moving around a lot more than usual. He reported the following took place nearly every day: feeling tired or having little energy, feeling bad about himself or that he is a failure or let himself or family down. He reported several days of having trouble concentrating on things and did not report any days of thoughts that he would be better off dead or hurting himself in some way. He indicated that these problems have made it somewhat difficult to work or get along with people. In the anxiety questionnaire, he reported the following took place more than half the days: Feeling nervous, anxious or on edge. He reported the following took place nearly every day: Not being able to stop or control worrying; worrying too much about different things; trouble relaxing, being easily annoyed or irritable and feeling as if something awful might happen. He reported being so restless that it is hard to sit still several days. He indicated that these problems have made it somewhat difficult to work, take care of things at work or get along with people. At his March 2020 hearing the Veteran testified that since undergoing a September 2015 VA examination he was feeling either the same or worse, and also reported some issues, especially at work, where he reported a prior history of having lost a job and had issues trying to keep his combativeness in check with authorities or management. He endorsed mood swings and angry outbursts. He reported that he was currently working now, having recently gotten another job. He indicated the new job appeared to be a pleasant atmosphere, but there are issues where he struggled with mood swings. He indicated that his treatment included some counseling, but mostly maintained by speaking with church elders. He reported that attempts to treat with medication did not go well, with a poor response to medication. Transcript pg. 2-6 The report of an August 2020 VA examination diagnosed PTSD with no other mental health disorders. This resulted in occupational and social impairment with reduced reliability and productivity. His social, marital, and family history since his last C&P examination in September 2015 was discussed as follows. He lived with his wife, his 2 daughters (ages 24 and 17), and his mother. He also had two sons (age 19 and 26) who do not current live in the household. He and his wife have been married for almost 25 years. He endorsed stress in his marriage and his relationships with his children and mother associated with his mood swings, impatience, low frustration tolerance, and irritability. He admitted to inappropriately snapping at his family at times. He had some close friends at church and they often met up for Bible studies together, which was very helpful. He denied having problems getting along with people in general and stated that he would like to consider himself a good person. However, he admitted that people do not seem to be interested in having friendships with him and thought that his mood swings and irritable appearance might have something to do with that. He also admitted to a history of freezing up when trying to interact with people. He described those experiences consistent with social anxiety in that he suddenly does not feel that he has anything to talk about which leads to him feeling the urge to leave. He denied having outbursts or physical altercations when interacting with people in general, but he described having "internal outbursts" during which he feels irritable and frustrated with people. He denied experiencing ongoing and pervasive problems with being in crowds. Relevant occupational and educational history was significant for his having been fired in December 2017 from a job he held for 17 years in the telecommunications industry 12/2017 due to his mood swings and interpersonal problems. He stated that new management came in before he was fired and that the new management was unable or unwilling to work with him given his mental health issues at work. The veteran worked for an orthopedics company as a "DME" for a little over 2 years between 2018 and 2020. He was fired from that job around the time that company started laying people off due to COVID-19. He lamented that his demeanor, irritated facial expressions, and forgetfulness were contributors to the decision to fire him. He was currently in school to get educated and trained to take and pass his CDL test. He expressed hope that working alone as a truck driver will be beneficial to him given his mental health issues and interpersonal problems at work in the past. He endorsed some difficulties in school that appear to be associated with low confidence in himself. He denied current mental health treatment. He stated that he attended a few sessions with a non-VA mental health clinician of some sort a couple of years ago but otherwise denied a history of being treated for PTSD or any other associated disorder. He stated that he copes with his mental health symptoms by relying on social support from his friends, his faith/spirituality, and keeping busy. He denied any relevant legal and behavioral history since the September 2015 VA examination. He reported that he consumes alcohol "at least every other day," drinking an average of 4 beers or 2 glasses of liquor on each occasion. He denied experiencing consequences associated with his current alcohol use. He stated that drinking alcohol helps him to relax. Use of illegal drugs was denied. He endorsed symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationship. On behavioral observations, he was noted to arrive early, and was polite, cooperative, and forthcoming. His visible hygiene appeared good, but ambulation could not be observed via video conference. His affect was congruent to mood. His eye contact was fair, and he appeared fully oriented. He had normal speech and his psychomotor behavior showed no evidence of agitation or slowing. Thought content revealed no evidence of psychosis. His thought processes were a little scattered, circumstantial, and tangential at times. There were no obvious problems with attention, concentration, or memory during the interview. He denied any active suicidal ideation, intent, and plan; but admitted to occasionally thinking that he would not mind going to sleep as if he wants to give up. Other symptoms noted were a history of being occasionally startled from sleep for unknown reasons, with difficulty resuming sleep thereafter. He avoided contact with old military buddies because he does not want to be reminded of his time in Southwest Asia (SWA). He tried hard not to think about his time in SWA by staying busy. He had bouts of sad mood, mild amotivation and struggles with poor confidence at times. He was capable of managing his financial affairs. The above described treatment records and examination reports, along with the Veteran's lay testimony reveal symptoms that are associated with a 50 percent rating. Such symptoms including disturbances in motivation and mood, are shown to impact interpersonal relationships with family members and coworkers. However, he was noted to be gainfully employed during most of this appeal and was presently training for a more suitable vocation of truck driving, which he believed would accommodate his symptoms. He also was noted to socialize with church friends and generally was not in need of medication to treat his symptoms. He is also not shown to have symptoms more closely resembling a 70 percent rating such as suicidal ideation, near-continuous panic, and difficulty in adapting to stressful circumstances. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity as reported in the August 2020 VA examination. Lesser impacts on his occupational and social function were reported in the 2015 examinations, which in May 2015 only noted an 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 and no impacts on occupational and social function were noted in September 2015. The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. The above-described symptoms support a 50 percent rating. The Board finds that a 70 percent rating is not warranted for the appeal period. Indeed, occupational, and social impairment with deficiencies in most areas is not shown when viewing his total mental disability picture. The competent and probative evidence of record also weighs against showing various other symptomatology, such 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; spatial disorientation; neglect of personal appearance and hygiene; or, an inability to establish and maintain effective relationships. Indeed, the Veteran has consistently denied suicidal ideation. The evidence of record reflects that although there are difficulties with his spouse these appear to have been triggered by outside circumstances. Otherwise he is shown to have positive relationships with his children, family members, and church community, thus not amounting to an inability to establish and maintain effective relationships. (Continued on the next page) Based on the foregoing medical and lay evidence, the Board finds that social and occupational impairment with reduced reliability and productivity is shown, but deficiencies in most areas have not been more nearly approximated. Accordingly, a rating in excess of 50 percent is not warranted for the Veteran's PTSD. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carol Eckart 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.