Citation Nr: A25041263 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 220112-211509 DATE: May 6, 2025 ORDER A rating in excess of 30 percent for PTSD is denied. FINDING OF FACT The evidence does not show that the Veteran's overall psychiatric symptomatology caused occupational and social impairment with reduced reliability and productivity, or worse. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1988 to February 1996. A rating decision in January 2021 granted service connection for PTSD and assigned a 30 percent rating. In January 2022, the Veteran timely appealed to the Board by filing Form 10182 and selecting the Evidence Docket, a process allowing the Board to review the evidence up to the January 2021 rating decision, plus any evidence submitted within 90 days from the filing of Form 10182 ("Permitted Evidence Window"). Outside of the Permitted Evidence Window, there is additional evidence associated with the claim's file, such as VA treatment records, etc., which the Board is not, by operation of law, allowed to review in adjudicating this appeal. If the Veteran would like the VA to review the additional evidence, he may file a supplemental claim. The Veteran's psychiatric disorder is rated under the General Rating Formula for Mental Disorders, which provides that, a 30 percent rating is assigned when a veteran's psychiatric disorder causes 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). A 50 percent evaluation is assigned when a veteran's mental disorder causes 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; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is assigned when a veteran's mental disorder causes 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 personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); or an inability to establish and maintain effective relationships. A 100 percent rating is assigned when a veteran's mental disorder causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. DC 9411, 38 C.F.R. § 4.130. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran's psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency must assign a rating 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. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. A VA examination in January 2019 diagnosed the Veteran with PTSD. He reported the following information: He lives with his wife of seven years and two children. His wife is a nurse. He and his wife periodically argue. He periodically socializes with long term friends. He enjoys riding his motorcycle. Upon discharge, he worked in a few odd jobs. He has been a truck driver for many years. He has been with HEB for approximately 5 years. He works on the night shift. The Veteran reported having experienced light sleep characterized by frequent mid evening awakenings due to external sounds; and that he first sought psychiatric care in the previous week. The examiner noted symptoms of depressed mood, anxiety, and chronic sleep impairment. The examiner observed that the Veteran was casually dressed and well-groomed. He was alert and oriented times. His speech was fluent and without paraphasic errors. His thought processes were logical and coherent with euthymic affect. He was capable of managing his financial affairs. The examiner concluded that the Veteran's psychiatric symptoms caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication, which mirror the rating criteria of a 10 percent rating under DC 9411. During a second VA examination in December 2020, the Veteran reported the following: Since the last exam, he has continued to be married and is living with his wife. He maintains a small circle of friends and socializes with them occasionally. Since the last examination, he has been driving a truck and he has been employed as a truck driver since 1996. Since the last examination, he has been receiving individual counseling and medications through the VA. The examiner noted symptoms of anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. The examiner observed that the Veteran was pleasant and cooperative and was oriented in all major spheres. His speech was unremarkable, and his thought process was logical and goal oriented. His mood was euthymic, and his affect varied depending upon the subjects discussed. He denied any suicidal or homicidal thoughts. His judgment was intact, and he demonstrated adequate insight into his current symptoms. The examiner concluded that the Veteran's psychiatric symptoms 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 normal routine behavior, self-care and conversation, which mirror the rating criteria of a 30 percent rating under DC 9411. VA treatment records did not show any symptoms that are worse than those reflected by the VA examinations. VA treatment records show that the Veteran initially visited the VA mental health clinic in January 2019 to address his psychiatric symptoms. His chief complaint at that time was difficulty sleeping. Mental status examination showed that he was neatly dressed and groomed; that he was polite and cooperative with normal speech, variable mood, and without manic or hypomanic affect, or psychotic behavior, or obsessions, or hallucinations or delusion. He denied current or past suicidal ideation or plans. He was oriented to person, place, time and circumstance (oriented x 4) with intact judgment, concentration, memory, and fund of knowledge. During the appeal period, the Veteran periodically attended VA psychiatric therapy sessions. He reported variety of symptoms such as chronic sleep impairment, short memory issues, attention/concertation problems, anxiety, depression, irritability, avoidance, intrusive memories, flashback, hypervigilance, etc. He also reported work related stressors and triggers, such as witnessing traffic accidents as well as occasional family related stressors, such as argument with wife and disagreement with his teenage daughter. He consistently stated that his goal of attending psychiatric therapy treatment was to improve his sleep and not be so irritable. Mental status examination consistently show that the Veteran was alert and oriented x 4, with congruent affect, adequate hygiene and grooming, cooperative and reasonable behavior, intact insight and judgment, and unremarkable thought process and content. He consistently denied any delusions, hallucinations, or suicidal or homicidal ideations. After engaging in a holistic analysis, the Board finds that the severity, frequency, and duration of the Veteran's symptoms during this period most closely approximated the symptoms contemplated by a 30 percent rating, and did not rise to the severity level of a 50 percent rating which include symptoms such as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of long-term memory; impaired judgment; impaired abstract thinking; and difficulty in establishing and maintaining effective work and social relationships. VA examinations in January 2019 and December 2020 showed that the Veteran had symptoms such as depressed mood, anxiety, chromic sleep impairment, suspiciousness and mild memory loss. The January 2019 examiner concluded that the Veteran's psychiatric symptoms caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability only during periods of significant stress which mirror the rating criteria of a 10 percent rating under DC 9411. The December 2020 examiner concluded that the Veteran's psychiatric symptoms 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 normal routine behavior, self-care and conversation, which mirror the rating criteria of a 30 percent rating under DC 9411. VA examinations in January 2019 and December 2020 as well as VA treatment records consistently show that the Veteran was alert and oriented x4, adequately groomed with normal speech, thought process and content, intact judgement and insight, and that he consistently denied any delusions or hallucinations, or suicidal or homicidal ideations. In his appellate brief date April 2022, the Veteran's representative argued that the Veteran experienced auditory hallucinations of hearing sirens that were not there, which is a symptom listed under the 100 percent rating criteria. Review of the records shows that in May 2019, the Veteran reported that he has been hearing sirens upon awakening even though his wife did not hear them. This is the only occasion that the Veteran reported hearing sirens while his wife did not hear. Given his statements that he was easily awakened by background noises such as TV and sirens when asleep; that he was bothered by the sirens and loud booms in the combat area, and that he experienced sleep disturbance with combat themed nightmares, it is likely that the Veteran was awakened by the sirens in his dreams rather than experiencing auditory hallucinations. The VA examinations and VA treatment records consistently show that the Veteran has normal thought process and content, without any delusions or hallucinations. Moreover, even if it were accepted that the Veteran had auditory hallucinations, which is a symptom that can be consistent with a total rating, the fact remains that it would need to be shown that such symptomatology caused total social and total occupational impairment. This is clearly not the case, as the Veteran interacts with friends and family and is gainfully employed. As such, the Board finds that the overall evidence is against the finding that the Veteran experienced auditory hallucinations due to his PTSD during the appeal period. The Veteran's representative also argued that the Veteran reported changing his work shift to assuage his stress and help him sleep which indicates he experienced difficulty in adapting to stressful circumstances, including work or a work-like setting, a symptom contemplated by the 70 percent rating criteria. VA treatment records show that the Veteran's chronic sleep impairment contributed to his irritability and forgetfulness. VA records in January 2019 showed that he was working the night shift as a truck driver for HEB; records in April 2019 showed that his work shift changed from noon to approximately mid-night, and he reported a small improvement of sleep after this shift change. Records in April 2020 showed that he worked increased work hours and changing of shifts. Records in July 2020 show that he worked three 16-hour shifts in addition to two regular hour shifts. Records in October 2020 show that he stared a new shift, so his sleep was disrupted. The records show that the Veteran's shift change adversely impacted his sleep which caused increased irritability and forgetfulness, and not the other way around. While sleep impairment may be one of the symptoms of PTSD, his irregular working shift and his service connected sleep apnea also appear to have contributed greatly to his sleep impairment. As to the representative's argument that the Veteran caused experienced difficulty in adapting to stressful circumstances, the Board finds that all compensable ratings under DC 9411 contemplate some levels of occupational impairment, and that the overall evidence shows that the Veteran's occupational impairment due to his PTSD most approximates the 30 percent level, as the records show that although he reported work-related stressors, sleep impairment due to his shift changes, irritability, and decreased concentration, he generally performed his work function satisfactorily, and was able to accomplish added work hours (working three 16-hour shifts in addition to two regular hour shifts). After considering the severity, frequency, and duration of the Veteran's psychiatric symptoms during the appeal period, the Board finds that the Veteran's overall psychiatric symptoms most approximate to a 30 percent rating, such as depressed mood, anxiety, and chronic sleep impairment, and he was not shown to have many of symptoms that would be commensurate with a 50 percent rating, such as flattened affect, stereotyped speech, panic attacks more than once a week, difficulty in understand complex commands, and impaired judgement and thinking. Accordingly, a rating in excess of 30 percent for the Veteran's PTSD is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Wang, 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.