Citation Nr: 24006183 Decision Date: 02/05/24 Archive Date: 02/05/24 DOCKET NO. 20-28 813 DATE: February 5, 2024 ORDER Entitlement to a rating in excess of 30 percent for service connection posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran's PTSD has been characterized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; reduced reliability and productivity has not been shown. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for service connection posttraumatic stress disorder (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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from April 1969 to April 1971, from June 1977 to June 1980 and from January 1982 to January 1985. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2018 Regional Office (RO) rating decision. Increased Ratings 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 illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a rating in excess of 30 percent for service connection posttraumatic stress disorder (PTSD) The Veteran is seeking a higher rating for his service connected PTSD. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides the general rating formula for mental disorders. Under the applicable diagnostic criteria, a 30 percent rating is granted 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, 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 for 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- 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for 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 ideations; 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 the veteran's personal appearance and hygiene; difficulty in adapting to stressful circumstances (including in work or work like settings); inability to establish and maintain effective relationships. Id. A 100 percent rating requires total occupational and social impairment characterized by symptoms such as, but not limited to, gross impairment in thought processes or communication; persistent delusions of 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; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders. The Veterans PTSD is rated as 30 percent disabling from March 11, 2013. Based on the evidence of record, a rating in excess of 30 percent is not warranted. First, the Veteran does not exhibit objectively observable symptoms such as impaired judgment or impaired abstract thinking, stereotyped speech, difficulty in understanding complex tasks, or impairment of memory to a level that a 50 percent rating would be warranted. Specifically, during a July 2020 Disability Benefits Questionnaire, the Veteran reported that lately he feels bored, tired of living, and cries a lot when watching television. The examiner stated that suicidal ideas or intents were explored, however the Veteran reported that he has not thought of taking away his life and he prays often. The Veteran reported that he has forgotten many things but also that he remembers. (Based on the context, the Board finds that the Veteran was reporting that he has forgotten many things about his time in Vietnam, but he also still remembers his service there.) The Veteran also reported that he doesn't have nightmares, but thinks about what he lived in Vietnam daily, mainly because friends died in Vietnam, and he didn't. On occasion, when he sleeps, the Veteran reported that he hears soldiers marching and wakes up. He indicated that he cannot see films about the militia because he begins to cry. The examiner noted that the Veteran exhibited 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. The examiner also noted that the Veteran exhibited symptoms of depressed mood, anxiety, and chronic sleep impairment. During the interview process the Veteran was located in time, place, and person with good physical appearance. He was cooperative and answered all questions asked of him. The Veteran expressed concern about irritability for noises and lack of respect and consideration by people, as well as the social situations of the country. During his evaluation of the Veteran, the examiner found that that he did not present suicidal or homicide ideas or attempts, nor thoughts of harming himself or others. The Veteran reported that he receives support from the church and a sister. The examiner concluded that although the symptoms associated with the diagnosis of PTSD impact the life of the veteran, he maintains his independence and lives alone so there were no criteria or symptoms that would increase the previous diagnostic of PTSD. During March 2023 mental status examination, the Veteran exhibited adequate hygiene, was cooperative, and appropriately dressed. Further, his thought process was coherent, logical, and he expressed no suicidal or homicidal ideas or plans. Finally, the examiner noted no abnormality of perception, his memory was fair and recent, and his judgment and insight were fair. In view of his clinical evaluations, the Board finds that the Veteran does not exhibit objective symptomatology that would be sufficient to warrant a rating in excess of 30 percent. Specifically, the Board notes that the Veteran did not exhibit symptoms such as, or similar to, 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 as required for the next higher rating. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of occupational and social impairment, such as difficulty in adapting to stressful circumstances or the inability to establish and maintain effective relationships that may cause social impairment with reduced reliability and productivity. In this regard, it is clear that the Veteran's disorder reflects some impact on his social and occupational functioning. Nevertheless, as discussed above, the evidence does not indicate that a rating in excess of 30 percent is warranted. Therefore, based on evidence of record, the Board determines that a rating in excess of 30 percent is not warranted. Martin T. Mitchell Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica 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.