Citation Nr: 21040909 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-02 938 DATE: July 7, 2021 ORDER Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) (also claimed as insomnia) with secondary depressed mood, is denied. FINDING OF FACT For the period on appeal , the frequency, severity, and duration of the Veteran's symptoms of his service connected PTSD more closely approximate occupational and social impairment with reduced reliability and production, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for PTSD (also claimed as insomnia) with secondary depressed mood have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 2005 to May 2013, including service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) regional office. In January 2017, the Veteran requested a videoconference hearing with a Board Veterans' Law Judge (VLJ). In June 2019, the Veteran was notified that his hearing was scheduled in August 2019. However, the Veteran did not appear for a scheduled videoconference hearing before the Board in August 2019. He did not request that the hearing be rescheduled, nor has he provided good cause for his absence. Thus, his hearing request is considered withdrawn. 38 C.F.R. § 20.704 (e). As an initial matter, the Board notes that, while pending on appeal, the Veteran's service connected PTSD (also claimed as insomnia with secondary depressed mood) was assigned an increased rating of 30 percent in a rating decision dated in December 2016, effective from February 10, 2016. The claims remain in controversy because the highest ratings available were not awarded. See AB v. Brown, 6 Vet. App. 35 (1993) (a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded). Increased Rating The Veteran is seeking a higher rating for PTSD (also claimed as insomnia) with secondary depressed mood that he contends is representative of a higher rating since his 30 percent rating, effective from February 10, 2016. Specifically, the Veteran contends that his combat related incident keeps replaying in his head. This causes him to have daily trouble focusing at work and socializing with others. The Veteran further contends his PTSD (also claimed as insomnia) with secondary depressed mood causes him to have trouble focusing and completing tasks. The Veteran reports feeling depressed and anxious, with panic attacks, and trouble sleeping because of his PTSD. Lastly, the Veteran contends that the nature and circumstances that led to his PTSD are related to a roadside improvised explosive device (IED), therefore he has difficulty driving as he is under tension with recurrent memories. See May 2016 Notice of Disagreement (NOD). Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, 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. 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 frequency, severity, 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). 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 caused 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). 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. Under the General Formula, a 70 percent rating is assigned when there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood), and the impairment is attributable to 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. A 100 percent rating is assigned when there is total occupational and social impairment due to symptoms such 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 "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, the list of examples set forth for each rating does provide guidance as to the severity of symptoms contemplated for that rating. Id. Accordingly, while each of the examples needs not be proven in any one case, the symptoms must be analyzed considering those given examples. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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 examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. Relevant Factual Evidence In February 2016, the Veteran submitted a claim of entitlement to service connection for, inter alia, PTSD. See February 2016 VA Form 21-526EZ. In an April 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for PTSD and assigned a 10 percent rating, effective February 10, 2016. Thereafter, in May 2016, the Veteran submitted a Notice of Disagreement (NOD) as to the initial rating assigned. Subsequently, in December 2016, the AOJ increased the Veteran's rating to 30 percent effective February 10, 2016. This appeal was ultimately perfected. See January 2017 VA Form 9. In March 2016, the Veteran presented to a VA examination, where he was diagnosed with PTSD. See March 2016 VA PTSD Disability Benefits Questionnaire (DBQ). The examining psychologist noted that the Veteran's PTSD symptoms consisted of depressed mood, anxiety, suspiciousness, and chronic sleep impairment. Id. at 6. The Veteran denied hallucinations and delusions; and the examiner further noted the Veteran did not display signs of psychosis during the examination. Id. at 7. The Veteran further reported he retains the ability to perform activities of daily activity. Id. The examiner opined the Veteran's anxiety and depressive mood symptoms appear accounted for by the diagnosis of PTSD. Id. at 10. The Veteran denied suicidal and homicidal ideations and further denied such feelings in the past. Id. The examiner further opined the Veteran's PTSD symptoms have a mild to moderate impact on his ability to work and his depression was reported as mild. The examiner continued, the Veteran can sustain employment, meet work expectations, and maintain positive relationships with his family. Id. at 10-11. Lastly, the examiner opined, the Veteran's PTSD is best described as, "[o]ccupational 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." Id. at 11. Analysis Upon review of the Veteran's entire history, the Board concludes that the preponderance of the evidence is against a rating in excess of 30 percent at any time during the appeal period for the Veteran's service connected PTSD. Importantly, as this is an appeal as to the initial rating assigned, the relevant temporal focus is from February 10, 2016, the effective date of the award of service-connection, to present. The Veteran is currently rated at 30 percent throughout the appeal period for his PTSD. As such, to warrant an increased rating, the evidence must show that the Veteran's symptoms, at the very least, more nearly approximate a rating of 50 percent at some point during the appeal period. See 38 C.F.R. § 4.7. When the Board applies the two-part test enumerated in Emerson to the present appeal, the Board finds the Veteran is not entitled to a rating in excess of 30 percent. Emerson v. McDonald, 28 Vet. App. 200, 212 (2016). The symptoms noted in the March 2016 VA examination include depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild to moderate impact on work ability. These symptoms are consistent with a rating of 30 percent rating. See Vazquez-Claudio, 713 F.3d at 116. As noted above, 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, are experienced by the Veteran. To date, at no point during the appeal period has the Veteran reported, nor has the Veteran's symptomatology been noted as including these symptoms or symptoms such as these. Indeed, the evidence has consistently shown that the Veteran's symptomatology more nearly approximates a 30 percent rating. Specifically, the Veteran has experienced: depressed mood, anxiety, suspiciousness, and chronic sleep impairment (30 percent criteria). See March 2016 VA PTSD DBQ. It was noted that the Veteran's PTSD symptoms have a mild to moderate impact on his ability to work. However, the Veteran denied hallucinations and delusions; and the examiner further noted the Veteran did not display signs of psychosis during the examination. Id. at 7. The Veteran further reported he retains the ability to perform activities of daily activity. Id. The Board acknowledges that there is evidence that is potentially suggestive of a 50 percent rating; specifically, a mild to moderate impact on his ability to work (50 percent). However, the frequency, severity, and duration has not been shown. With respect to the functional impact of the Veteran's PTSD on his ability to work, the March 2016 VA examiner noted a mild to moderate impact. See March 2016 VA PTSD DBQ. However, the examiner went on to opine, the Veteran can sustain employment, meet work expectations, and maintain positive relationships with his family. The examiner ultimately described the Veteran's PTSD as "[o]ccupational 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." Id. at 11. As such, the Board finds that the mild to moderate impact of the Veteran's PTSD on his ability to work is, at worst, moderate in nature, which is contemplated by the 30 percent rating currently assigned. The Board acknowledges the Veteran's contention of panic attacks, which is mentioned in the criteria for a 50 percent rating. See May 2016 Notice of Disagreement (NOD). However, having one or more symptoms within the identified criteria for a higher rating does not automatically trigger the granting of a higher rating; it is the overall disability picture that the Board must consider. See 38 C.F.R. § 4.7. For the reasons above, the Board finds that the Veteran's PTSD has primarily presented with depressed mood, anxiety, suspiciousness, and chronic sleep impairment, which are contemplated by the 30 percent rating currently assigned. The Board further finds that the frequency, severity, and duration of the Veteran's reported symptoms of mild to moderate impact on his ability to work and reported panic attacks do not create an overall disability picture resulting in occupational and social impairment with reduced reliability and productivity, or occupational and social impairment with deficiencies in most areas, as contemplated by the 50 percent or 70 percent ratings, respectively. Specifically, looking at the symptoms that the Veteran exhibits that relate to the 70 percent rating, the record reflects that he experiences depression. As to depression, the March 2016 examiner only reported it as a depressed mood, and it was not found to interfere with his ability to function independently. The examiner opined that the Veteran's PTSD symptoms accounted for his depressed mood and that those symptoms caused "[o]ccupational 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." See March 2016 VA PTSD DBQ at 11. Therefore, even considering the Veteran's reported psychiatric symptoms, the frequency, severity, and duration of these symptoms do not rise to the level required by the 70 percent rating. Similarly, the record simply does not support a finding that the Veteran is entitled to a 100 percent rating, based on total occupational and social impairment. The symptoms noted by the rating criteria for a 100 percent rating include 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 (ADLs) (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. As discussed above, the Veteran has not reported that he suffers from any of these symptoms at any point during the appeals period. The Board has not overlooked the Veteran's lay statements found in the record. See May 2016 Notice of Disagreement (NOD). In this regard, the Veteran is credible to report on what he has seen and how he acts and feels. The Veteran is also certainly competent to report how he believes his PTSD has affected his life, including describing his symptoms. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, the Board finds more competent and credible the medical opinions provided by the VA examiners as discussed above, in rendering a decision as to the severity of the Veteran's PTSD based on the totality of the evidence, and the observable symptoms as demonstrated in clinical treatment notes and his several VA examinations conducted throughout the appeal period, which, as the Board notes, does consider his lay statements. As such, a rating in excess of the 30 percent already assigned is not supported by the evidence of record, and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.