Citation Nr: 18159488 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-52 498 DATE: December 20, 2018 ORDER Entitlement to evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to June 15, 2016, is denied. FINDING OF FACT Prior to June 15, 2016, PTSD was manifested by no worse than 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. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for PTSD prior to June 15, 2016, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from August 2003 to December 2003 and June 2004 to August 2005. This matter comes before the Board of Veteran’s Appeal (Board) on appeal of a February 2015 Decision Review Officer (DRO) decision issued by the Department of Veterans Affairs Regional Office (RO) in Montgomery, Alabama. This decision granted service connection for PTSD and assigned a 30 percent rating effective from December 2, 2014; the Veteran disagreed with the evaluation. During the pendency of the appeal, the RO awarded a 100 percent rating effective June 15, 2016. As that is a full grant of the benefit sought since that date, the appeal remains active only for the stage prior to June 15, 2016. Evaluation of PTSD prior to June 15, 2016. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides that 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), is rated 30 percent disabling. 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; difficulty in establishing and maintaining effective work and social relationships, is rated 50 percent disabling. 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 worklike setting); inability to establish and maintain effective relationships, is rated 70 percent disabling. 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; memory loss for names of close relatives, own occupation, or own name, is rated 100 percent disabling. 38 C.F.R. § 4.130. The rating formula is not intended to constitute an exhaustive list, but rather is intended to provide examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of occupational and social impairment, and assign an evaluation based on the overall disability picture presented. However, the impairment does need to cause such impairment in most of the areas referenced at any given disability level. Vazquez-Claudio v. Shinseki, 713 F. 3d. 112 (Fed. Cir. 2013). At a December 2014 mental health appointment, the Veteran reported anxiety, irritability, and sleep disturbances. He could not drive due to anxiety and was nervous as a passenger. He had difficulty concentrating, but reported hypervigilance and paranoia. A February 2015 VA PTSD examination revealed the Veteran was cooperative and alert, and thought process was logical. The Veteran complained of depressed mood, chronic sleep impairment, and mild memory loss. The examiner diagnosed the Veteran with posttraumatic stress disorder and indicated that the Veteran was generally functioning satisfactorily with normal behavior, self-care and conversation. The Veteran reported that he had limited social activities and leisure pursuits and experienced difficulties with co-workers. Up until this point, treatment and examination records during the appellate period included no homicidal or suicidal ideation. At worst, the veteran reported frequent anxiety; while this interfered with specific tasks like driving, it did not overall prevent him from functioning independently. He continued to interact with family, and records show a marked improvement from complaints noted after his 2005 return from Iraq, when he was first put on Zoloft. Overall, records show the Veteran was functioning well despite the presence of some PTSD symptoms. In the Veterans June 15, 2016 mental status exam, a marked worsening meriting the award of an increased rating is shown. However, prior to that date, no increased rating is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Emily A. Kotroco, Law Clerk