Citation Nr: 18152119 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-12 975 DATE: November 20, 2018 ORDER An initial rating in excess of 50 percent prior to February 9, 2015 and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. Prior to February 9, 2015, the occupational and social impairment from the Veteran’s PTSD was manifested reduced reliability and productivity. 2. Since February 9, 2015, the occupational and social impairment from the Veteran’s PTSD has resulted in deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 50 percent prior to February 9, 2015 and in excess of 70 percent thereafter for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Army from January 1968 to January 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to an initial rating in excess of 50 percent prior to February 9, 2015 and in excess of 70 percent thereafter for PTSD Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 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 rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. 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 disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in January 2013. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran filed his initial claim requesting service connection for PTSD on January 22, 2013. In a November 2013 VA rating decision, service connection for PTSD was granted. The Veteran was assigned a 50 percent disability rating for the entire appeal period effective from January 22, 2013. 38 C.F.R. § 4.130, Diagnostic Code 9411. During the course of the appeal, in a February 2015 rating decision, a 70 percent rating was assigned for PTSD effective from February 9, 2015. Id. Since the 50 and 70 percent disability ratings do not constitute a full grant of the benefit sought prior to February 9, 2015 or thereafter, the issue has been characterized accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran has asserted that he is entitled to higher ratings for his PTSD as his symptoms are worse than those contemplated by the currently assigned ratings. As such, the Board considers whether an initial rating in excess of 50 percent prior to February 9, 2015 and in excess of 70 percent thereafter for PTSD is warranted in this case. Pursuant to the General Rating Formula for Mental Disorders, a 50 percent rating requires occupational and social impairment, but with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, 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 task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted for even greater occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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 inability to establish and maintain effective relationships. Id. The maximum rating of 100 percent requires total occupational and social impairment due to such symptoms as: 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. Id. The use of the term “such as” in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit stated that “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.” “Although the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of [occupational and social] impairment.” The nomenclature employed in the portion of VA’s rating schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. The Board notes VA implemented usage of the DSM-5, effective August 4, 2014; however, the VA Secretary has determined that DSM-5 does not apply to claims certified to the Board prior to August 4, 2014. 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As this case was initially certified to the Board in June 2015, the DSM-5 is for application in this case. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). Review of the evidentiary record since January 22, 2013 documents the following psychiatric symptomatology. At a May 2013 VA examination, the Veteran reported that he re-married the prior year, and that he had numerous grandchildren who frequently visited his home. He indicated that he had three children, one with whom he had a good relationship. He reported that he worked part-time as a school bus driver, which he indicated was quiet and easy. On examination, the Veteran appeared neat, with appropriate speech and tone. He had depressed mood and appeared anxious. Thought process was logical, linear, and goal oriented, and thought content was mood congruent. The Veteran reported past suicidal ideations but denied any current homicidal or suicidal ideations, plan or intent. The Veteran also denied hallucinations and delusions. He did, however, complain of memory problems. The examiner reported that the Veteran’s PTSD was productive of depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, irritability, difficulty concentrating, hypervigilance, exaggerated startle response, avoidant behavior, feelings of detachment, suicidal ideation, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner opined that the Veteran’s PTSD was most productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. At a February 2015 VA examination, the Veteran reported that his relationship with his wife had deteriorated since his May 2013 VA examination, which he attributed to his increased irritability. He reported that he still had a good relationship with one of his children, and that he had a good relationship with one of his three siblings. The Veteran indicated that he had a few friends, but none of whom he had a close relationship. The Veteran reported that the quit his job as a school bus driver because he could no longer tolerate the noise and commotion, and that he had experienced increased amounts of road rage and feared that he may have acted on his aggressive impulses. He reported that he typically slept for three to four hours per night, which resulted in low energy. He indicated that he enjoyed golfing approximately once per week. The Veteran also reported that he had become more socially withdrawn since his May 2013 VA examination. On examination, the Veteran was casually dressed in disheveled attire that was otherwise appropriate. His grooming and hygiene were adequate, but he reported that he sometimes went two or three days without showering. His gait, posture and motor activity were unremarkable, and attention and concentration were grossly intact. He appeared to be of average intelligence and there were no deficits in his expressive or receptive language skills. His attitude was cooperative, eye contact was normal, and his mood was dysphoric. He reported that he experienced episodic suicidal ideation, but denied a plan or intent. He also denied hallucinations and delusions. The examiner reported that the Veteran was capable of managing his own financial affairs. The examiner reported that the Veteran’s PTSD was productive of depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, neglect of personal appearance and hygiene, exaggerated startle response, hypervigilance, problems with concentration, irritability, and reckless or self-destructive behavior. The examiner opined that the Veteran’s PTSD was most productive of occupational and social impairment with deficiencies in most areas. A review of the record shows that the Veteran receives treatment at the VA Medical Center for various disabilities. However, there is no indication from the record that his PTSD symptoms are manifestly different than those reported at his VA examinations. For the initial appeal period prior to February 9, 2015 (January 22, 2013 to February 8, 2015), the aforementioned evidence reflects that the Veteran’s PTSD was manifested by depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, irritability, difficulty concentrating, hypervigilance, exaggerated startle response, avoidant behavior, feelings of detachment, suicidal ideation, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Board considered the lay statements of record describing symptoms, and considers them to be probative, but finds that they are representative of symptomatology that most closely approximates the currently-assigned 50 percent disability rating during this relevant period on appeal. The Board acknowledges that the Veteran made statements regarding suicidal ideation. However, given the record in this case, the Board finds that a higher initial disability rating is not warranted based on this symptomatology, as it does not result in occupational and social impairment with deficiencies in most areas, the hallmarks of a 70 percent disability rating. See Bankhead v. Shulkin, No. 15-2404 (Vet. App. May 9, 2017) (noting that the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level); Vazquez-Claudio, 713 F.3d at 117 -18. To that end, at the May 2013 VA examination, the Veteran reported that he had experienced suicidal ideations in the past but he denied experiencing any current ideations, plan or intent at that time. Moreover, treatment records for the period on appeal indicate that the Veteran repeatedly denied experiencing suicidal ideations. Thus, the Board finds that at no point during the period of the appeal prior to February 9, 2015, has the Veteran’s service-connected PTSD been shown to have met the criteria for the next-higher rating of 70 percent. The evidence does not show that the Veteran has had occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The May 2013 VA examiner reported that the Veteran had a well-groomed appearance, his thought process was logical and goal-oriented, his speech was normal, he had intermittent periods of depression, and he was oriented to person, place, time, and situation. Further, he also exhibited no delusions, hallucinations, obsessive rituals, or current suicidal ideations. Moreover, there is no evidence that the Veteran’s PTSD significantly interfered with his ability to perform his job, as he did not report any difficulty with such at his May 2013 VA examination. In short, the Board does not find that the Veteran’s symptomatology in terms of frequency, duration, or severity more closely approximates the next higher disability rating. For these reasons, an initial rating in excess of 50 percent at any time prior to February 9, 2015 for PTSD is not warranted. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Next, for the initial appeal period since February 9, 2015, the Board finds that the Veteran is not entitled to the maximum rating of 100 percent for PTSD. In this regard, there is no indication from the record that the Veteran’s occupational and social impairment was total. While the Veteran reported significant symptoms of depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, neglect of personal appearance and hygiene, exaggerated startle response, hypervigilance, problems with concentration, irritability, and reckless or self-destructive behavior; there is no indication from the record that those symptoms were of such severity that they caused total impairment. There is no indication that the Veteran has impairment in judgment, thought processes, or speech. He did not experience homicidal ideations, he had not attempted suicide, and he did not experience delusions or hallucinations. While the Veteran appeared slightly unkempt at his most recent examination, there is no indication that he has significant difficulty with maintaining personal hygiene, he was fully oriented at that examination, and he was alert. Additionally, the Veteran has no impairment in orientation and the February 2015 VA examiner reported that the Veteran was capable of handling his own financial affairs. Further, the Veteran endorsed was married and maintained contact with a child, sibling and a few friends. Moreover, the Veteran indicated that he occasionally left home to play golf. For these reasons, an initial rating of 100 percent at any time since February 9, 2015 for PTSD is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. For the entire initial appeal period, the Board is aware that the symptoms listed under the next-higher ratings of 70 and 100 percent are essentially examples of the type and degree of symptoms for that rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher rating. See Mauerhan, 16 Vet. App. at 436. Moreover, entitlement to such evaluations requires sufficient symptoms of the requirements, or others of similar severity, frequency, or duration, that cause the specific type of occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 117-18. In this case, the Board has considered these next-higher rating during the appeal period but finds that they are rated appropriately. The Board has also considered the possibility of staged ratings and finds that the scheduler ratings for the service-connected disability on appeal have been in effect for appropriate periods on appeal. Accordingly, further staged ratings are inapplicable. See Hart, 21 Vet. App. at 505. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. O’Donnell, Associate Counsel