Citation Nr: 19178564 Decision Date: 10/15/19 Archive Date: 10/15/19 DOCKET NO. 16-59 894 DATE: October 15, 2019 ORDER Entitlement to a disability rating in excess of 70 percent for post-traumatic stress disorder (PTSD) for the period prior to May 2, 2019, is denied. FINDING OF FACT For the period prior to May 2, 2019, the Veteran’s PTSD more nearly approximates occupational and social impairment with deficiencies in most areas consistent with a 70 percent disability rating. CONCLUSION OF LAW Prior to May 2, 2019, the criteria for a disability rating in excess of 70 percent for PTSD have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411. Introduction The Veteran served on active duty in the United States Marine Corps during the Vietnam Era, from August 1966 to August 1968. This appeal comes before the Board of Veterans’ Appeals (Board) from a September 2014 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This appeal was previously before the Board, and in December 2018 the matter was remanded so that another VA examination could be conducted to determine the current severity of the Veteran’s PTSD. The Board notes that actions requested in the prior remand have been undertaken. In this regard, an additional VA examination was performed and resulting medical opinion obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board finds a brief discussion of the Veteran’s PTSD claim is warranted. In an August 2011 Rating Decision, the RO originally awarded service connection for PTSD with an evaluation of 30 percent effective May 10, 2010. The August 2011 Rating Decision became final as to that issue because the Veteran did not submit a Notice of Disagreement (NOD), or new and material evidence in connection with the claim, within the one-year appeal period. See 38 C.F.R. § 3.156(b). In January 2014 the Veteran filed a claim to increase his 30 percent evaluation for PTSD, but the RO continued the 30 percent rating in a September 2014 Rating Decision. Thereafter, the Veteran expressed disagreement and the RO assigned an increased 70 percent rating throughout the period under appeal by way of an October 2016 Rating Decision. The Veteran again disagreed with the 70 percent rating assigned by the RO and, after filing his substantive appeal and following a remand by the Board in December 2018 (as discussed above), the RO issued a Rating Decision dated May 2019 assigning an increased 100 percent rating for PTSD effective May 2, 2019. Finally, “[w]here a [Veteran] has filed an NOD as to an RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit…does not…abrogate the pending appeal.” AB Brown, 6 Vet. App. 35, 38 (1993). Thus, for the period prior to May 2, 2019, because the rating is less than the maximum benefit available, the issue of a rating in excess of 70 percent for PTSD remains on appeal. Id. However, as the issue was granted in full by the RO in its May 2019 Rating Decision, the issue is no longer in appellate status as of the effective date of May 2, 2019. The Board has characterized the issue on appeal accordingly. REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of the 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. PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. In pertinent part, a 70 percent disability rating is warranted for 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); and inability to establish and maintain effective relationships. Finally, a 100 percent disability rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought process 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Factual Background and Analysis Entitlement to a disability rating in excess of 70 percent for PTSD for the period prior to May 2, 2019, is denied. For reasons explained below, the Board agrees with the staged ratings assigned by the RO in this matter. As noted above, the RO assigned a 70 percent rating for the Veteran’s PTSD effective January 2014, when his claim for an increased rating was received, and increased it again effective May 2, 2019, to 100 percent. Treatment records from the Sacramento VA Medical Center (VAMC) dated February 2013 indicate the Veteran denied suicidal and homicidal ideations and did not feel hopeless. A progress note dated December 2013 indicates the Veteran “reported a history of chronic sleep problems, intrusive thoughts, and hyperarousal and anger problems towards family members,” and presented as alert and lucid, with no suicidal or homicidal ideations. He was described as “doing well” and in a “good mood.” According to a February 2014 treatment note the Veteran, with a history of PTSD, reported feeling “fine.” The Veteran underwent a VA compensation and pension (C&P) examination in August 2014, at which time the VA examiner noted he had been married for 46 years, had a close relationship with his two sons, remained in contact with his six siblings, and had worked for 30 years until laid off in 2012. Symptoms were noted to include anxiety and suspiciousness but, otherwise, the Veteran was reportedly pleasant and did not exhibit any unusual behaviors during the examination. According to the VA examiner, “the [V]eteran’s PTSD is considered mild at this time and his VA records indicated his symptoms are close to being asymptomatic or in remission.” The VA examiner opined the Veteran’s possessed occupational and social impairments with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. A medical opinion was provided by the Veteran’s therapist, D.S., LMFT, dated August 2014. According to his therapist, the Veteran possessed occupational and social impairment with reduced reliability due to flattened affect, circumlocutory speech, difficulty understanding complex commands, impairment of short and long term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty establishing and maintaining effective social relationships. Treatment records from the Sacramento VAMC dated December 2014 indicate the Veteran discussed his recent VA Rating Decision denying an increased rating for PTSD, and he expressed still having “significant PTSD symptoms” including nightmares, withdrawal, survivor guilt, moodiness and depression “when seeing movies or news about wars.” The Veteran denied current suicidal and homicidal ideations, but requested another referral to the PTSD counseling group, which he had recently completed, due to unresolved issues. In September 2015 the Veteran underwent another VA C&P examination, at which time the VA examiner noted the “Veteran’s level of impairment due to PTSD is seen as significantly more impairing than described in his previous C&P for PTSD.” According to the VA examiner, the Veteran’s symptoms included depressed mood; anxiety; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances (including work or a worklike setting); and neglect of personal appearance and hygiene. As a result, the VA examiner opined the Veteran possessed occupational and social impairment with reduced reliability and productivity. The Veteran’s spouse provided a statement in support of his claim for an increased rating dated November 2016. Therein, she described his progressively worsening symptoms over the years, such as being “very cautious” around crows, being withdrawn, having nightmares, and being paranoid and agitated. Additionally, the Veteran provided a statement describing his symptoms dated December 2016, wherein he described difficulties with thinking and communicating, memory, focusing, establishing and maintaining social relationships, delusions, being on guard, hallucinating, inappropriate behavior, anger control, being withdrawn, depression, mood swings, performing activities of daily living, and disorientation to time and place. Treatment records from the Sacramento VAMC dated May 2018 indicate the Veteran screened negative for depression and PTSD. Significantly, treatment records through February 2019 are negative for any reported exacerbations of PTSD or other psychiatric symptomology. The Veteran presented for another VA C&P examination on May 2, 2019. During this VA examination, the Veteran’s symptoms had expanded to include depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; nearly continuous panic or depression affecting his ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; impairment of short and long term memory; difficulty understanding complex commands; impaired abstract thinking; disturbance of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships; obsessional rituals which interfere with routine activities; impaired impulse control (such as unprovoked irritability with periods of violence); and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). At the time, the Veteran was reportedly alert, fully oriented, and generally cooperative, with normal hygiene and speech, and intact insight and judgment; however, he presented with an anxious and depressed mood and congruent affect, tearful, with no thought disorder or psychotic sequelae of symptoms, or endorsing suicidal or homicidal ideation, intent, or plan. According to the VA examiner, the Veteran possessed total occupational and social impairment resulting in the RO’s rating of 100 percent effective the date of the examination. The Board finds that the criteria for the maximum 100 percent rating has not been met for any distinct period throughout this appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). A higher 100 percent rating is not warranted prior to May 2019 based upon a lack of objective evidence of 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. Importantly, the Veteran has at times described ongoing symptoms including anxiety, suspiciousness, nightmares, social withdrawal, depressed mood, mild memory loss, and some issues with neglecting personal hygiene. However, he denied any history of suicide attempts and the record does not document gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, or significant memory loss. As a result, his overall disability picture does not reflect a total impairment of occupational and social functioning at any time prior to the VA examination conducted in May 2019. (Continued on the next page)   (CONTINUED ON NEXT PAGE) T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.