Citation Nr: 18142374 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 14-12 142 DATE: October 15, 2018 ORDER The claim of entitlement to an evaluation of 70 percent for posttraumatic stress disorder (PTSD) prior to August 14, 2014, is granted. FINDING OF FACT Throughout the period on appeal, the Veteran’s PTSD manifested with symptoms most closely analogous to occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for an evaluation of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Navy from July 1983 to January 1988. In January 2016 correspondence, the Veteran’s attorney requested a 70 percent evaluation for the Veteran’s PTSD throughout the period on appeal. The Veteran initially filed his increased rating claim in August 2010. In August 2017, the Regional Office granted a temporary total evaluation for his PTSD due to a period of hospitalization from February 14, 2017, to April 1, 2017. In July 2018, the Regional Office staged the Veteran’s evaluation to award a 70 percent rating effective August 14, 2014, excluding the period of temporary total evaluation between February 2017 and April 2017. Accordingly, the only period remaining before the Board is from August 2010 to August 14, 2014. The grant of a 70 percent evaluation is a grant of full benefits sought on appeal. 1. The claim of entitlement to an evaluation in excess of 50 percent prior to August 14, 2014 The Veteran contends that he is entitled to a 70 percent evaluation prior to August 14, 2014. After a thorough review of the medical and lay evidence of record, the Board finds that a 70 percent evaluation is warranted from August 2010 to August 14, 2014. Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD is rated under Diagnostic Code 9411, 38 C.F.R. § 4.130. Mental disorders are rated under the General Rating Formula for Mental Disorders pursuant to 38 C.F.R. § 4.130. A 50 percent rating is warranted 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is 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); and an inability to establish and maintain effective relationships. 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; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. In May 2012, VA treatment records note ongoing symptoms of depression and anxiety associated with his PTSD and in-service trauma. The Veteran reported nightmares, and auditory hallucinations. He also endorsed a history of physical violence as recently as the week prior to his VA appointment. The Veteran had a history of both alcohol and substance abuse, as well as several in-patient psychiatric admissions, including three for suicide attempts. In May 2012, the Veteran underwent a VA examination to assess the nature and severity of his PTSD. The Veteran reported difficulty holding a job, and only limited interpersonal interactions due to his simmering anger and rage. He reported multiple stints in jail due to his fighting, as well as two previous failed marriages. The examiner found symptoms of: depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control such as unprovoked irritability with periods of violence. In June 2012, VA treatment records reflect that the Veteran continued to experience difficulties with memory and anxiety. He reported feeling apprehensive, and endorsed an increased startle response. He was alert and oriented through treatment, and presented as well-groomed. His speech was clear, coherent and relevant. The Veteran’s thought processes were logical, linear and goal-directed. Thought content was within normal limits with no hallucinations reported. He denied current suicidal ideation. In July 2012, the Veteran’s fiancée wrote a statement endorsing symptoms of spatial disorientation, neglect of personal appearance, panic attacks, and depression. She reported that he picked fights, including with gang members. In August 2012, VA treatment records reflect chronic symptoms associated with PTSD, primarily including avoidance and hyperarousal symptoms. In treatment, he was slightly disheveled, but cooperative. His speech was of normal rate and volume. He denied suicidal and homicidal ideation. His thought processes were coherent and logical. His judgment and insight were fair. In November 2013, VA treatment records reflected difficulty with employment. He lost his job that year, and was previously fired for his anger issues. He denied manic symptoms, as well as suicidal and homicidal ideation. His PTSD symptoms primarily included hyperarousal and avoidance. In January 2014, VA records reflect ongoing treatment and medication management for PTSD. The Veteran reportedly kept himself busy around the house doing little projects, and he visited his parents. He denied manic symptoms, suicidal ideation and homicidal ideation. He reported improvement in his irritability. In June 2014, the Veteran’s wife wrote a statement regarding his ongoing symptomatology. His wife endorsed episodes of anger and rage that involved yelling or hitting things. The Veteran talked about unidentified flying objects. He was fired from or quit many jobs, and purportedly almost stabbed a man to death. She reported that he will forget what day or month it is, and she must remind him to shower and shave. At the same time, the Veteran’s father submitted a statement that his son was angry, and had hurt or killed people. Occasionally, the Veteran believes he is someone else. After a thorough review of the medical and lay evidence of record, the Board finds that the Veteran’s symptoms most closely approximate those of the assigned 70 percent rating throughout the period on appeal. See Mauerhan, 16 Vet. App. at 442-43. The Board recognizes that the Veteran suffered from deficiencies attributable or exacerbated by his depression. The Board’s determination of the appropriate degree of disability is a finding of fact. In applying the ratings schedule, the Board considers the severity, frequency, and duration of psychiatric symptoms to determine the appropriate disability evaluation. See, e.g., Brewer v. Snyder, No. 15-2800, 2017 U.S. App. Vet. Claims LEXIS 90, at 13 (Vet. App. Jan. 31, 2017); citing Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). While symptoms are listed under each category for evaluation, the particular symptoms are to be demonstrative of that overall level of severity, frequency and duration. Mauerhan v. Principi, 16 Vet. App. 436, 442 (U.S. 2002). As such, the Board has considered the symptoms specific to the Veteran throughout the period on appeal, and determined the analogous evaluation pursuant to the ratings schedule in 38 C.F.R. § 4.130. When considering the severity, frequency and duration of the impairments as delineated in the 70 percent evaluation, the Board notes that the symptoms listed present a significant impediment to daily life. Symptoms such as obsessional rituals which interfere with routine activities, near-continuous panic or depression, and the inability to establish and maintain effective relationships, present obstacles to routine functioning on a daily basis. Personal hygiene and grooming are not limited to one particular sphere, but affect work, school, and family relations. Spatial disorientation and intermittently illogical speech are markedly severe symptoms associated with basic cognitive function and the ability to interact with the world. Suicidal ideation, in of itself, represents the impulse or desire to remove oneself from the world entirely. As exemplified by the symptoms listed in this category, the 70 percent evaluation is appropriate for deficiencies that harm most areas of life. Either symptoms are continuous, or near-continuous, or represent such a severity that routine daily functions are chronically impeded. In contrast, the evaluation for a 100 percent impairment includes symptomatology that presents a total impairment to daily functioning. Not only are the representative symptoms of the most severe possible from a psychiatric disorder, but they interfere with the ability to independently engage in activities of daily life. Persistent delusions or hallucinations, disorientation to time or place, and significant memory loss all prevent the person from routine engagement with the world. The ability to even maintain the most basic hygiene standards has been harmed by the severity or frequency of the associated symptomatology. When symptoms of a psychiatric disorder are so severe as to present a total impairment to occupational and social activity, then a 100 percent evaluation should be afforded. As noted by the May 2012 VA examination, the Veteran experiences symptoms including: depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control such as unprovoked irritability with periods of violence. VA treatment records reflect that the Veteran has also previously reported suicidal ideation as well as suicide attempts. He endorsed difficulty keeping a job due to his anger issues and difficulties interacting appropriately with coworkers. Taken together, these ongoing symptoms most closely resemble occupational and social impairment in most areas. The Veteran has not, however, demonstrated functioning analogous to a 100 percent evaluation. A 100 percent evaluation requires total occupational and social impairment with symptoms of similar severity to persistent delusions or hallucinations, gross impairment in thought or communication, and the loss of memories such as names of close relatives or himself. While the Veteran exhibits serious symptoms related to his PTSD, his mental faculties remain intact, and he has consistently presented as oriented. Treatment records have not shown that the Veteran is unable to care for himself. Although the record reflects that he has difficulty with his social relationships, he married during the period on appeal, and maintained a close relationship with his parents, demonstrating that total social impairment does not exist. Therefore, the frequency, duration, and severity of the Veteran’s PTSD symptoms throughout the period on appeal, do not more nearly approximate total occupational and social impairment. While the Veteran’s wife and father reported more serious symptomatology, such reports are not corroborated by the Veteran’s extensive treatment records throughout this period. While lay persons are competent to report observable symptomatology associated with a disability, the Board must determine whether that lay evidence is credible, which includes consideration of factors such as possible bias, conflicting statements, and the absence of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); see Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (Board has duty to determine the credibility and probative weight of the evidence); Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (“Credibility is determined by the fact finder.”). Regarding issues of credibility, the Board notes that credibility can be affected by inconsistent statements, internal inconsistency of statements, and inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). While the Veteran’s wife and father report more severe symptoms, the probative value of these statements is diminished as they conflict with the Veteran’s own reports of symptomatology during treatment. (Continued on the next page)   In sum, the Veteran’s demonstrated symptomatology is analogous to that of the 70 percent evaluation. An evaluation in excess of 70 percent is not warranted throughout the period on appeal. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel