Citation Nr: 1820137 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 14-22 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial increased rating in excess of 50 percent before April 30, 2013 and in excess of 70 percent beginning April 30, 2013, for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel INTRODUCTION The Veteran served on active from December 1969 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran was first granted service connection for PTSD in a rating decision of December 2010. In October 2011 the Veteran filed a claim for an initial increased rating in excess of 50 percent for PTSD. VA provided an examination on this issue in December 2011. A rating decision of January 2012 denied this increase. As the Veteran did not file a timely Notice of Disagreement (NOD) and no new and material evidence was added to the file within one year, this rating became final. In April 2013, VA provided medical examinations related to another claim and in June 2013 granted an increased rating from 50 to 70 percent for PTSD, based on the evidence obtained in the April 2013 VA exams. The Veteran filed a timely NOD to this rating, and the Board has recharacterized his claim as a claim for increased rating in excess of 50 percent before April 30, 2013 and in excess of 70 percent beginning April 30, 2013, for service-connected PTSD. In the Veteran's June 2014 substantive appeal (VA Form 9), he requested a Board hearing before a Veterans Law Judge sitting at the RO. This hearing was scheduled for May 9, 2017. The Veteran appeared at the RO on that date but submitted a written withdrawal of his request for a Board hearing. 38 C.F.R. § 20.704(e) (2016). FINDINGS OF FACT 1. Before April 30, 2013 the Veteran's PTSD caused at worst occupational and social impairment with reduced reliability and productivity. 2. Beginning April 30, 2013 the Veteran's PTSD has caused at worst occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for PTSD from before April 30, 2013 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an initial rating in excess of 70 percent for PTSD from April 30, 2013 onward have not been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities in 38 C.F.R. Part 4 (2017). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). If two ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating, otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). All reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. §4.3 (2017). A rating of 30 percent for PTSD requires evidence that is 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 rating of 50 percent for PTSD requires evidence that it 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; difficulty in establishing and maintaining effective work and social relationships. A rating of 70 percent for PTSD requires evidence that it 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 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. A rating of 100 percent for PTSD requires evidence that it 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; 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. i. PTSD Before April 30, 2013 The Veteran is seeking a disability rating for PTSD in excess of 50 percent before April 30, 2013. For the reasons below the Board finds that a disability rating of 50 percent, but not greater, is warranted for this period. Before April 30, 2013 the most recent medical evidence of record on this issue was a December 2011 VA examination. The examiner reviewed the claims file and examined the Veteran. She noted symptoms including: Depressed mood; anxiety; panic attacks more than once per week; chronic sleep impairment; disturbance of motivation and mood; difficulty in establishing and maintaining effective work relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting. She also noted the Veteran's statements that he was always "on guard" in crowds and concluded that his polysubstance abuse was likely self-medication for his PTSD. She opined that the Veteran's PTSD caused 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. The observed symptoms are split between those required for a 30 percent rating and those required for a 50 percent rating. They do not reflect the more impaired thought processes and behaviors associated with a 70 percent evaluation, such as: suicidal ideation; impaired impulse control; and neglect of personal appearance or hygiene. The Veteran stated in his NOD that he feels he should have been granted a higher evaluation before April 30, 2013 but he has provided no evidence or reasoning to support that claim. The Board finds that the observed symptoms from the December 2011 VA examination are the most probative evidence of the Veteran's PTSD symptoms before April 30, 2013 and that those symptoms more closely approximate the criteria for a 50 percent rating than for a 70 percent rating. The claim for a rating in excess of 50 percent for PTSD before April 30, 2013 must therefore be denied. ii. PTSD From April 30, 2013 The Veteran is seeking a disability rating for PTSD in excess of 70 percent beginning April 30, 2013. For the reasons below the Board finds that a disability rating of 70 percent, but not greater, is warranted for this period. VA provided an April 2013 examination. The examiner reviewed the claims file and examined the Veteran. She observed symptoms including: depressed mood; chronic sleep impairment; mild memory loss; speech intermittently illogical, obscure, or irrelevant; disturbances of motivation or mood; difficulty establishing/maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including work or worklike setting. She also noted the Veteran's statements that he was "always on edge," felt "jumpy inside" and experienced vivid flashbacks. The Veteran also reported estrangement from most of his immediate family but maintaining a stable relationship with his girlfriend of eight years and having a "somewhat okay" relationship with his daughter. While the veteran had not worked for the past few years, he attributed this to pain, not his PTSD. The examiner opined that the Veteran's PTSD caused only occupational and social impairment with reduced reliability and productivity. VA provided a July 2014 examination. The examiner reviewed medical records and examined the Veteran. She observed symptoms including: anxiety; chronic sleep impairment; mild memory loss; speech intermittently illogical, obscure, or irrelevant; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner opined that between his PTSD and substance abuse the Veteran had functioning impairment best characterized as occupational and social impairment with deficiencies in most areas, but the proportion of impairment assigned to service-connected PTSD and other mental disorders is not able to be determined. The Board will resolve this doubt in favor of the Veteran and consider all of this impairment as being caused by his service-connected PTSD. While the Veteran has claimed a higher rating is appropriate, he has provided no evidence or reasoning in support of this claim other than his statement on the NOD. The Board finds that the observed symptoms from the April 2013 and July 2014 VA examinations are the most probative evidence of the severity of the Veteran's PTSD beginning April 30, 2013. These symptoms closely approximate the criteria for a 70 percent rating. He did not demonstrate any of the listed criteria for a higher, 100 percent rating. Furthermore, while he has a strained relationship with his immediate family, as of the April 2013 exam he had maintained a stable romantic relationship for eight years and was on decent terms with his daughter. This is evidence that he is not totally impaired as far as maintaining social relationships. The Board finds that the Veteran's PTSD symptoms more closely approximate the criteria for a 70 percent rating than for a 100 percent rating. The claim for a rating in excess of 70 percent for PTSD beginning April 30, 2013 must therefore be denied. ORDER Entitlement to an increased disability rating in excess of 50 percent before April 30, 2013 and in excess of 70 percent beginning April 30, 2013 for PTSD is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs