Citation Nr: 18104147 Decision Date: 05/21/18 Archive Date: 05/21/18 DOCKET NO. 14-41 434A DATE: May 21, 2018 ORDER Prior to October 7, 2016, an initial disability rating of 50 percent, but not in excess of 50 percent, for posttraumatic stress disorder (PTSD) is granted. On and after October 7, 2016, a disability rating in excess of 50 percent for PTSD is denied. FINDINGS OF FACT 1. Prior to October 7, 2016, the Veteran’s psychiatric symptoms and impairment due to his service-connected PTSD approximate a rating based on occupational and social impairment with reduced reliability and productivity due to symptoms such as depression, anxiety, sleep impairment, difficulty with concentration and memory, disturbances of motivation and mood, and periods of irritability with outbursts of anger. 2. For the entire rating period, the Veteran’s psychiatric symptoms and impairment do not more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; or total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to October 7, 2016, the criteria for the assignment of a higher initial 50 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2014); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 2. For the entire rating period, the criteria for a higher initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2014); 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter is before the Board of Veterans’ Appeals (Board) on appeal of rating decision of a Department of Veterans Affairs (VA) Regional Office. In December 2011, the Veteran was granted service connection for PTSD with a 30 percent disability rating, effective July 14, 2011, the date of his claim for PTSD. Within one year of the December 2011 rating decision, the Veteran submitted evidence of symptomatology of PTSD of greater severity; therefore, the Board finds that new and material evidence was received prior to the expiration of the appeal period, and the issue of a higher initial rating remained pending and is on appeal before the Board. See 38 C.F.R. § 3.156 (b) (2017). In January 2017, the Agency of Original Jurisdiction issued a rating decision that granted a 50 percent rating for the Veteran’s PTSD, effective October 7, 2016. As this grant, however, did not represent a total grant of benefits sought for the entire period on appeal, the Veteran’s claim for a higher initial rating for his PTSD remains pending before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Higher Initial Rating for PTSD Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Here, the Board finds that the Veteran’s symptoms related to his PTSD have not significantly changed throughout the appeal period and a uniform rating is warranted. The Veteran’s PTSD is rated under Diagnostic Code 9411 and utilizes the General Rating Formula for Mental Disorders (General Rating Formula), which is used to assign ratings ranging between 0 and 100 percent. Under the General Rating Formula, a 30 percent evaluation contemplates 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, and recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned 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. Id. A 70 percent rating is assigned when a psychiatric disorder 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned 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, or for the veteran’s own occupation or name. Id. In November 2011, the Veteran was diagnosed with PTSD. The examiner opined that the Veteran’s psychiatric disorder caused occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant distress, or symptoms controlled by medication. The Veteran was noted to suffer from symptoms that included: depressed mood, chronic sleep impairment, and mild memory loss. He described his mood as “pretty down, lately” and teared up when Vietnam was mentioned. The examiner noted that the Veteran’s concentration appeared to be impaired, but that combat related nightmares were less frequent than they had been previously. Intrusive memories were noted to be in response to reminders of the war. In June 2012, a narrative regarding the Veteran’s PTSD was completed by a provider at the VA Bessemer Outpatient Clinic. The narrative stated that the Veteran suffers from recurrent distressing dreams of his inservice trauma but that he occasionally feels and acts as if the trauma was recurring. The narrative stated that the Veteran’s symptoms had been increased lately as his son had recently expressed a desire to go into the National Guard. The Veteran reported experiencing intense distress at exposure to internal or external cues, such as ducking when he hears a car backfiring or when he hears fireworks. It was noted that the Veteran tries to avoid activities, places, or people that remind him of his experiences in Vietnam. He also reported feelings of detachment and estrangement from others. The provider stated that the Veteran presents with a restricted range of affect and he has periods of irritability with outbursts of anger and difficulty with concentration. He displays symptoms of hypervigilance and reports that he is always on alert and easily startled. In March 2013, the Veteran underwent another evaluation of his PTSD. During the examination, the Veteran reported that he gets along well with his children and that is his marriage is “good.” He stated that he sees friends at church on Wednesdays and Sundays, but he primarily socializes with his family. The examiner noted that the Veteran had mild memory loss, such as forgetting names, directions or recent events. The examiner stated that the Veteran did not report nightmares within the prior three months. His mood was noted to be mildly dysthymic with a mildly restricted affect. Irritability with outbursts was noted when “he’s working on something and it doesn’t go right.” In April and October 2016, the Veteran underwent additional evaluations of his PTSD. The examiners opined that the Veteran’s psychiatric disorder caused 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 October 2016 examiner noted symptoms of PTSD that included: depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, and disturbances of motivation and mood. The examiner also stated that the Veteran’s thought processes were logical and his insight and judgment were adequate. The Veteran reported periods of irritability and anger, including a sore between his knuckles from punching a wall in anger. The Veteran reported suffering intermittent panic attacks, especially in crowds. He reported suffering on while at Walmart the previous week. He also reported recurrent war-related nightmares, intrusive thoughts about Vietnam, and vivid flashback episodes that occur about once per month. The Veteran contends that a higher initial rating is warranted for his psychiatric disorder. In January 2017, the Veteran was granted an increased rating of 50 percent, effective October 7, 2016. In September 2017, submitted a statement reporting that he was not in disagreement with the percentage currently assigned for his PTSD, but he felt that his rating should go back to his date of claim. He argued that his VA examinations were not adequately evaluating the severity of his condition, and his treatment records for PTSD indicate that his condition has causing the same level of symptoms throughout the appeal period. Upon review of the evidence of record, the Board agrees and has granted a 50 percent rating, but no higher back to the Veteran’s date of claim. The Board finds that the Veteran’s psychiatric symptoms and the severity of such approximate a higher initial 50 percent rating based on occupational and social impairment with reduced reliability and productivity due to symptoms such as depression, anxiety, flattened affect, chronic sleep impairment, difficulty with concentration and memory, disturbances of motivation and mood; and periods of irritability with outbursts of anger. The Board finds that the Veteran’s treatment records, and the summary of his symptoms provided by the nurse practitioner at the Bessemer VA Outpatient Clinic to be of greater probative weight than the evaluations provided in November 2011 and March 2013. The 2012 evaluation noted that the Veteran was suffering from frequent distressing dreams, and was experiencing intense distress at exposure to internal or external cues that would remind him of the trauma. The evaluation also noted that the Veteran’s irritability with outbursts of anger, detachment and estrangement from others, and difficulty with concentration. The Board notes that the early VA evaluations, particularly the November 2011 examination, indicated that the Veteran had not been suffering from nightmares in several months and indicated normal social interaction. Review of the Veteran’s treatment records indicate that the Veteran continued to deal with frequent nightmares and intrusive thoughts that affect his day to day interactions, during this period. The evidence indicates that these events were resulting in sleep impairment, difficulty with concentration and memory, disturbances of motivation and mood, and periods of irritability with outbursts of anger. While the RO assigned a higher 50 percent rating from the date of his October 2016 VA examination, the Board finds that the Veteran’s treatment records and the report provided by the nurse practitioner at the Bessemer VA Outpatient Clinic provide evidence that the Veteran’s symptoms have been of greater severity throughout the course of the entire rating period. The Board finds, therefore, that is it is not factually ascertainable, based on the evidence of record, that an increase in disability had occurred during the period on appeal, and instead, the weight of the evidence shows that the higher assigned 50 percent rating is warranted for the entire appeal period. The Board has reviewed all the evidence of record and finds that the evidence has not met or more nearly approximated the criteria for a higher 70 percent rating at any time during the rating period. While the Veteran has been noted to be retired during the appeal period, the Veteran has demonstrated residual occupational capacity by helping to take care of his grandchildren on occasion and even reporting that being active helps relieve his symptoms of PTSD. While the Veteran has reported limited social interaction, he has regularly reported “alright” or “good” relationships with his wife, his children, and grand-children. The Board finds that he does not demonstrate deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood as indicated for a higher 70 percent rating and his symptoms and his overall disability picture more closely approximates the criteria as described for a 50 percent rating. Further, the Veteran has reported that he feels that the 50 percent rating is appropriate, and has not contended that his condition causes impairment that would warrant a 70 percent or 100 percent rating for PTSD. Moreover, his psychiatric symptoms are not of a similar to and are not of a similar severity to symptoms described for a 70 percent rating. For these reasons, the Board finds that the Veteran’s PTSD does not more nearly approximate the rating criteria for a 70 percent evaluation under DC 9411 and a rating in excess of 50 percent is denied throughout the appeal period. Because the preponderance of the evidence is against the appeal for an initial rating in excess of 50 percent for PTSD, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. The evidence indicates that adequate notice was provided to the Veteran and that VA complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Board also concludes that VA’s duty to assist has been satisfied. The Veteran’s service treatment records, lay statements provided by the Veteran and his wife, and relevant treatment records have been associated with the claims file. The Veteran also has not identified any outstanding records that are relevant to the claims being decided on appeal. The Veteran was afforded multiple VA examinations in relation to the claim on appeal. The Board finds that these examinations, in combination with the lay statements and treatment records of record, to be comprehensive and sufficient in addressing the severity of the Veteran’s PTSD any related functional impairment. In this regard, it is noted that these evaluations were provided following a review of the claims file and a thorough examination and interview of the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that the duty to assist has, therefore, been satisfied and there is no reasonable possibility that further assistance would be capable of substantiating the claim decided on appeal. 38 U.S.C. § 5103A(a)(2) (2014). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. M. Johnson, Counsel