Citation Nr: A24020331 Decision Date: 04/23/24 Archive Date: 04/23/24 DOCKET NO. 240311-424288 DATE: April 23, 2024 ORDER An initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT Throughout the appeal period, the Veteran's PTSD manifested as occupational and social impairment with reduced reliability and productivity, but not as occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 50 percent for PTSD are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from April 1968 to March 1969 and from March 1969 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) from an April 2023 Higher Level Review (HLR) decision issued by the agency of original jurisdiction (AOJ), which continued a 50 percent evaluation for PTSD. The Veteran timely submitted a March 2024 Board Appeal: Notice of Disagreement, VA Form 10182, with that decision, and selected the Direct Review lane. By way of history, the Veteran filed an Intent to File, VA Form 21-0966, in May 2022, before filing a service connection claim for PTSD in July 2022. In a September 2022 rating decision, the AOJ awarded service connection for PTSD and assigned a 50 percent evaluation, effective May 20, 2022, the date of receipt of the Intent to File. Thereafter, the Veteran filed a Decision Review Request: Higher-Level Review (HLR), VA Form 20-0996, in January 2023. The AOJ then issued the April 2023 HLR decision, which is the subject of this appeal. Therefore, the Board may only consider the evidence of record at the time of the initial September 2022 AOJ decision, which was subsequently subject to HLR in the April 2023 rating decision (September 13, 2022). 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued that decision, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. DIf the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Mental disorders are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. Under Diagnostic Code 9411, which is governed by the General Rating Formula, a 50 percent evaluation is assigned where there is 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation 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 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted 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; 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411. When evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "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 moment of the examination." 38 C.F.R. § 4.126(a). In this regard, the United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In other words, under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. See 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. See Vazquez-Claudio, supra. Finally, the Board acknowledges that the United States Court of Appeals for Veterans Claims has held that the language of the General Rating Formula "indicates that the presence of suicidal ideation alone...may cause occupational and social impairment with deficiencies in most areas." See Bankhead, supra. However, the Board notes that VA must still engage in a holistic analysis and assess the severity, frequency, and duration of the signs, symptoms, and resulting social and occupational impairment of those signs and symptoms in determining the assigned evaluation for the Veteran's psychiatric disability. Turning to the evidence of record, there are no VA or private psychiatric treatment records of record. Thus, the sole evidence regarding the Veteran's psychiatric symptoms is the August 2022 VA psychiatric examination. In that examination, the examiner diagnosed the Veteran with PTSD and noted that the Veteran had the following symptoms: anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty adapting to stressful circumstances, including work or a work like setting. Additionally, the examiner noted during the examination the Veteran was oriented, demonstrated a congruent mood and affect, and maintained minimal eye contact as he was tearful describing his past trauma. The examiner found that the Veteran's suicide risk level was not at an elevated acute risk. Overall, the examiner assessed the Veteran has having occupational and social impairment with reduced reliability and productivity. Socially, the Veteran reported having a first marriage that lasted 13 years; he has 3 stepsons from that marriage. Currently, he has been married to his spouse for 35 years and has 2 stepsons from his current marriage. The Veteran lost a brother and sister but asserted he remains close to his other siblings who remain in Ohio. The Veteran reported that his triggers include: watching the news (which he avoids), hearing colleagues complain at work as he views these complaints as petty and ridiculous, and seeing clothes from Vietnam when shopping. The Veteran acknowledged a difficulty falling asleep due to intrusive thoughts and experiences "violent images" (nightmares) 1-2 nights per week. He also at times has low energy, low motivation, and a short fuse. The Veteran reported his long-term memory to be strong but noted some challenges regarding his short-term memory. He denied suicidal thoughts, intentions, and plans. He stated that he finds it difficult being in public since he wants to avoid crowds, loud settings, and standing in line; if he and his wife go out, it is usually early on a weekday. Based on the foregoing, the Board finds that the evidence reflects an overall disability picture of occupational and social impairment with reduced reliability and productivity; thus, an evaluation of 50 percent is appropriate. Initially, the evidence does not demonstrate that the Veteran has the following symptoms: obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently; any neglect of personal appearance and hygiene; or, the inability to establish and maintain effective relationships. There is no evidence of hallucinations, delusions, grossly inappropriate behavior, or persistent danger to himself or others. Although, the Veteran has some evidence of family troubles (as indicated by his prior divorce), and indicated he is short fused, the Board cannot find that the frequency, severity, and duration of his current symptom presentation at issue in this case rises to the level of deficiencies in most areas. Currently, the Veteran in his own words is in a "healthy and positive" marriage that has, at this point, existed for over 35 years. Additionally, the Veteran has maintained contact with his siblings and has positive relationships with his stepsons. Of note, although there is evidence of the Veteran being socially isolative, it does appear the Veteran still participates in work (as evidenced by his statement that he doesn't appreciate colleagues complaining at work), will go out in public (with his wife), and otherwise is able to socialize adequately. In short, the sole competent and credible evidence regarding the overall functional impairment resultant from the Veteran's psychiatric symptoms is the August 2022 examiner's conclusion that such results in reduced reliability and productivity. The August 2022 examiner's conclusion is based on review of the claims file, examination of the Veteran and his medical experience and expertise. The Board therefore finds this examiner's opinion regarding the functional impairment to be highly credible and probative in this case and to be unrefuted by any other evidence of record. After assessing all of the evidence of record and considerable in this appeal, the Board finds that the evidence of record more closely approximates to occupational and social impairment with reduced reliability and productivity rather than deficiencies in most areas. Accordingly, an evaluation in excess of 50 percent for his psychiatric disability must be denied at this time. See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). MARTIN B. PETERS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Breen, Gabrielle M. 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.