Citation Nr: 22016754 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 19-01 006 DATE: March 23, 2022 ORDER A disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate 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. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to August 1971, and from November 1977 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2021, the Veteran testified before the undersigned Veterans Law Judge. Entitlement to a rating in excess of 50 percent for PTSD The Veteran contends that his PTSD symptoms of suicidal ideations and difficulty maintaining relationships warrant a 70 percent rating. See March 2022 Appellate Brief. In October 2016, the Veteran submitted a VA 21-526EZ, Fully Developed Claim (Compensation), requesting an increased rating for his already service-connected PTSD. Because the claim is not an initial claim, the Board will consider evidence of symptomatology up to one year from the date the application was filed in October 2016. Hart v. Mansfield, 21 Vet. App. 505 (2007); 38 C.F.R. § 3.156 (b). 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. For the reasons set forth below, the Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. 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 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. VA treatment records, the January 2017 and November 2021 VA examinations, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 50 percent rating (panic attacks more than once a week, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships), and a symptoms associated with a 70 percent rating (suicidal ideation). The evidence of record also shows that the Veteran endorses symptoms that are not listed with a specific rating, such as loss of interest in activities and crowd avoidance. See June 2021 Hearing Transcript. The Veteran's unlisted symptom of crowd avoidance is similar to suspiciousness contemplated by the 30 percent rating criteria. Further, loss of interest in activities is similar to disturbances of motivation and mood which is contemplated by the assigned 50 percent rating. The Board acknowledges that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the November 2021 VA examination. The examination report noted suicidal ideation as a symptom, but during the examination the Veteran denied suicidal ideation. In the remarks section, the examiner described the Veteran as having fleeting suicidal ideation without plan, intent, or history of behavioral furtherance. The examiner referenced VA outpatient medical records documenting the Veteran's report of suicidal ideation in concluding that the Veteran had low acute risk for suicide. Based on the foregoing, the Board finds that the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating because his ideations do not result in a persistent danger of him hurting himself. After considering the evidence of record, the Board also finds the level of impairment caused by the Veteran's PTSD symptoms more closely approximates the level associated with a 50 percent rating. Of all the symptoms associated with his PTSD disorder, the Veteran experiences only one associated with the 70 percent rating criteria, suicidal ideation. As discussed below, the frequency, severity, and duration of this symptom does not result in functional impairment consistent with a 70 percent disability rating. All his other symptoms are associated with a 50 percent rating or below. The record reflects that the Veteran experienced occupational and social impairment with reduced reliability and productivity. Socially, the Veteran was happily married for over 40 years until the unexpected death of his spouse. See January 2017 VA Examination Report. He has reported having positive familial relationships with his sister, daughter, and granddaughter, but not with his three sons. Id. As for hobbies, the Veteran reported crowd avoidance and that he spends the majority of his time at home performing hobbies such as reading, watching television, and playing computer games. See June 2021 Hearing Testimony. He is retired and there is no indication of any additional work experience. Mental status examinations in VA treatment records and the January 2017 and November 2021 VA examinations indicate that the Veteran had moderate mental status examination findings. During the January 2017 VA examination, the Veteran denied suicidal and homicidal ideations. On mental status examination, his appearance was within normal limits with good eye contact. He requested to move his chair because he did not want his back to the window, but was described as friendly and jovial. Orientation, attention, memory, speech, and thought processes were all within normal limits with intact judgment. The examiner remarked that the Veteran's overall symptoms were of moderate severity despite the Veteran himself describing his symptoms as severe. Because the Veteran is able to function reasonably well within his social circle but unable to engage socially to a degree that he would like, the examiner described his impairment as moderate. On November 2021 VA examination, diagnoses of PTSD and depression were provided. The examiner indicated that it was not possible to differentiate which symptoms were attributable to each diagnosis, as such, the Board has considered all psychiatric symptoms in this decision. On examination, the Veteran denied any suicidal ideation and denied hospitalizations and psychiatric care. He reported attending monthly psychotherapy sessions with positive benefits. On mental status examination, it was noted that the Veteran arrived early and drove alone to the appointment. He was described as cooperative, neatly dressed and groomed with clear, logical, and goal directed speech. His mood was sad, anxious, and angry, and he demonstrated mildly depressed effect. The examiner noted that the Veteran smiled, joked, and laughed in efforts to maintain composure. Both VA examiners summarized the Veteran's level of occupational and social impairment as reduced reliability and productivity. Further, despite the Veteran's assertion of worsening symptoms, a review of VA medical records show that the Veteran reported anxiety, depression, and stress symptoms attributed to the death of his spouse, but was otherwise managing his symptoms well. September 2020 to June 2021 VA treatment records document the Veteran's reports of stress, anxiety, and depression. He reported leaning on other family members for support and sometimes going to Walmart late at night. He indicated that his sister, daughter, and granddaughter have provided emotional support. During these VA visits, mental status exams showed a depressed affect and dysthymic mood with fluent speech and coherent thought process and content. The Veteran's insight was described as fair and his appearance as appropriate. A September 2021 VA mental health outpatient note contains a generally normal mental status exam. The Veteran was described as casually dressed with intact cognitive functioning. He had a flat affect and dysphoric mood but speech was relevant and coherent. Thought process was free flowing and insight was good. A November 2021 VA mental health note documents that the Veteran reported having a positive visit from his daughter and sister and that he was "in general managing well." The Veteran's level of occupational and social impairment is an adjudicative question. 38 C.F.R. § 4.126(a). Here, the Board finds the Veteran has occupational and social impairment with reduced reliability and productivity. The Board has considered the impact of the Veteran's suicidal ideations, but finds that the frequency, severity, and duration of this symptom does not result in the level of impairment contemplated by a 70 percent rating. There's no denying that the Veteran experiences occupational and social deficiencies because of his psychiatric symptoms. However, his symptoms have not resulted in occupational and social impairment with deficiencies in most areas. The evidence of record demonstrates that he was consistently alert and oriented to person, place, and time, with normal speech, logical, coherent, and coherent thought process, free of persistent delusions or hallucinations. Further, he has reported having positive relationships with some family members, including his sister, daughter, and granddaughter. Medical professionals often described him as pleasant and appropriate. He reported "managing well." Lastly, the Board acknowledges that in support of his application, the Veteran submitted a PTSD disability benefits questionnaire (DBQ) completed by a private physician in September 2016. On examination, the private physician opined that the Veteran had total occupational and social impairment. The following symptoms were found: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short and long term memory, difficulty understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals, impaired impulse control, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. In summary, the September 2016 DBQ contains findings that would warrant a total (100 percent) rating, however, the DBQ is grossly inconsistent with the overall evidence of record. As detailed above, the Veteran was afforded a January 2017 VA examination, four months after the private DBQ, during which the VA examiner found occupational and social impairment with reduced reliability and productivity. On mental status examination, the Veteran's appearance was within normal limits with good eye contact. He requested to move his chair because he did not want his back to the window, but was described as friendly and jovial. Orientation, attention, memory, speech, and thought processes were all within normal limits with intact judgment. The examiner remarked that the Veteran's overall symptoms were of moderate severity despite the Veteran himself describing his symptoms as severe. The November 2021 VA examiner, similarly, also found that the Veteran had occupational and social impairment with reduced reliability and productivity. The September 2016 DBQ indicates that the Veteran's symptoms result in an intermittent inability to perform activities of daily living, something not mentioned or suggested in any other record. In the above-mentioned January 2017 examination, the Veteran was described as smelling like cigarette smoke, but that his grooming and hygiene were adequate. In the 2021 examination, he was described as neatly but casually dressed and groomed. Further, while the Veteran does have some social impairment, he has reported having positive relationships with his sister, daughter, and granddaughter which is contrary to a finding of total social and occupational impairment. Because the September 2016 DBQ is grossly inconsistent with the overall evidence of record, to include mental status examination findings, the Board finds that this evidence is insufficient to grant the claim. Moreover, the Board notes that the Veteran does not appear to allege that such symptoms exist. The March 2022 Appellate Brief argued that an increased rating was warranted based on suicidal ideations and difficulty maintaining relationships. It did not mention impaired impulse control or obsessional rituals that interfere with routine activities and the Veteran does not contend otherwise. The Board recognizes that the Veteran testified that he does not regularly shower, but he also reported that he was not active. Taken with the VA treatment records which repeatedly document his appearance as "casual" and his dress and hygiene as "appropriate" or "appropriately groomed" the Board finds that an intermittent inability to perform activities of daily living has not been demonstrated. While the Veteran did experience symptoms contemplated by a 70 percent ratingsuicidal ideationthe evidence overall does not demonstrate the level of impairment associated with a 70 percent rating or higher. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. As such, the Board finds the Veteran's overall level of impairment more closely approximates a 50 percent disability rating throughout the appeal period, and a higher disability rating is denied. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Baker, 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.