Citation Nr: A24069563 Decision Date: 10/29/24 Archive Date: 10/29/24 DOCKET NO. 220706-258302 DATE: October 29, 2024 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with major depression is denied. REMANDED Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is remanded. 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 disability rating in excess of 50 percent for PTSD with major depression are not 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 on active duty in the United States Army from October 1988 to April 2011. In July 2022, the Veteran filed a decision review request and elected direct review. 38 C.F.R. § 19.2(d). Based on the Veteran's choice to pursue a direct review of his appeal, the Board will decide the appeal "based on the evidence of record at the time of the prior decision." The Board notes that the rating decision on appeal was issued in May 2022. Entitlement to a rating in excess of 50 percent for PTSD with major depression The Veteran contends he is entitled to a rating in excess of 50 percent for PTSD. For the following reasons, the Board finds that an increased rating is warranted. 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). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. 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 (such as forgetting names, directions, or recent events), cause 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 normal conversation). 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. The Veteran attended a VA examination via telehealth in March 2021. He reported averaging about six hours of sleep a night with nightmares and racing thoughts. He also reported difficulty with concentration. He denied any current mental health treatment. Socially, he disclosed living with his wife of 31 years and being able to shop in large supermarkets and go to restaurants, hockey games and NFL games. Occupationally, he has worked as a freight conductor since 2011. The Veteran reported being disciplined at work for lapses in following safety protocols and expressed difficulty with downtime particularly when staying at hotels for work. The examiner noted symptoms of depressed mood, anxiety, panic attacks that occur weekly or less, suspiciousness, chronic sleep impairment, and difficulty adapting to stressful circumstances. Behaviorally, his rapport was adequate and he was appropriately attired but his affect was blunted and his mood was mildly dysphoric. The examiner found the mental disorder was productive of occupational and social impairment with occasional decrease in work efficiency and ability to perform occupational tasks. In June 2021 the Veteran underwent an in person VA examination. He reported weekly panic episodes, chronic sleep difficulties, negative thoughts and memories, racing thoughts, poor concentration, feelings of depression and guilt, lack of motivation to complete tasks, and lack of interest in previously enjoyed activities. Socially, the Veteran reported that he continued to live his wife and their adult son who recently moved back home. He described his relationship with his spouse as stable but not the most loving and stated that he enjoyed his son's company. He also reported having a good social network consisting of friends and his brother-in-law who lived nearby. Occupationally he remained employed as a conductor but expressed dislike for the job due to the hours and demands. He disclosed being reprimanded for verbal confrontations with employees and that he gets frustrated with coworkers. The Veteran reported that he has not seen a counselor for his conditions since 2013. He denied any legal issues or problems with violence. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less, chronic sleep impairment, and disturbances of motivation and mood. Behaviorally, the Veteran was casually dressed and groomed, established good rapport easily, had good eye contact with adequate speech and his thoughts were logical and goal directed. He denied suicidal and homicidal ideation. His judgment and insight were good. His mood was euthymic with full range affect and moments of tearful expressions when discussing upsetting memories. The examiner concluded the mental disorder was productive of occupational and social impairment with reduced reliability and productivity. The Board finds the severity, frequency, and duration of the Veteran's symptoms most closely approximate the symptoms contemplated by a 50 percent rating. See 38 C.F.R. § 4.126. Socially, the evidence reveals that the Veteran established and maintained effective relationships. Specifically, he had a stable relationship with his spouse of 31 years and a good relationship with his son whom he enjoyed spending time with and even had a social network of family and friends. He was also able to engage in social events to include those with large crowds as he reported going to restaurants, sporting events and large shopping markets. Occupationally, he maintained employment as a freight conductor since 2011 albeit he disclosed some difficulties such as becoming easily frustrated with coworkers. These activities are most consistent with an occupational and social impairment with reduced reliability and productivity. Furthermore, the Veteran's symptoms such as depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less, chronic sleep impairment, and disturbance of motivation and mood are consistent with criteria for a 30 or 50 percent rating. While he also reported racing thoughts and poor concentration, which are not specifically contemplated in the rating criteria they are similar to the symptoms of anxiety and difficulty understanding complex commands, which are contemplated by the current 50 percent rating. At most, the June 2021 VA examiner concluded that the Veteran's symptoms resulted in an occupational and social impairment with reduced reliability and productivity which is consistent with a 50 percent rating. Probative weight is given to the findings and conclusions of the March and June 2021 VA examiners as they are medical professionals who conducted interviews of the Veteran and reviewed the record. The Board notes that the March 2021 VA examiner found that the Veteran had difficulty in adapting to stressful circumstances, which is contemplated by a 70 percent rating. However, the evidence does not suggest that the Veteran's overall symptomology is more closely approximated by an occupational and social impairment with deficiencies in most areas. Despite his difficulties the Veteran maintained relationships with his spouse, son and a group of friends and also maintained consistent employment. He denied suicidal ideation, kept up his personal appearance and hygiene, had logical and goal directed thought processes and adequate speech. There was no evidence of impaired impulse control as the Veteran denied any legal issues or problems with violence and no indication that that the Veteran was unable to function independently or complete routine activities due to his symptoms. Therefore, while the Veteran experienced difficulty adapting to stressful circumstances that by itself is insufficient to establish a higher rating as the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. In sum, the evidence of record reveals that the overall frequency, severity and duration of the Veteran's symptoms are most closely associated with a 50 percent rating. Accordingly, the evidence of record persuasively weighs against finding that the Veteran's symptoms resulted in the level of impairment required for a 70 percent rating. The criteria for a 70 percent or higher rating are not met and the appeal is denied. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for GERD A remand is necessary to correct a duty to assist error that occurred prior to the rating decision on appeal. VA has a duty to make reasonable efforts to assist Veterans in securing evidence necessary to substantiate their claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The evidence indicates that there may be outstanding relevant private treatment records. The Veteran reported being treated for GERD at urgent care; however, the medical records are not associated with the file. As these records are potentially relevant to the issue on appeal a remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 2. Ask the Veteran to complete a VA Form 21-4142 for the urgent care where he sought treatment for his GERD. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.