Citation Nr: A19002068 Decision Date: 10/21/19 Archive Date: 10/18/19 DOCKET NO. 190416-8326 DATE: October 21, 2019 ORDER An initial rating in excess of 50 percent for PTSD, for the period from September 9, 2010 to September 6, 2018, and in excess of 70 percent from September 7, 2018 to October 12, 2018, is denied. FINDING OF FACT During the entire period on appeal, the Veteran’s PTSD manifested with symptoms that cause no more than moderate to moderately severe occupational and social impairment; his symptoms did not cause total occupational and social impairment at any time during the period on appeal. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for PTSD, for the period from September 9, 2010 to September 6, 2018, and in excess of 70 percent from September 7, 2018 to October 12, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that the rating decision on appeal was issued in January 2012. In February 2018, the Veteran elected the modernized review system under the Rapid Appeals Modernization Program (RAMP). 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). The Veteran served on active duty from April 1966 to April 1968. The Veteran selected the Higher-Level Review lane when he opted in to the Appeals Modernization Act (AMA) review system by submitting a RAMP election form. As such, the record was supposed to be closed on the date VA received his RAMP election form, which was February 12, 2018. 84 Fed. Reg. 138, 172 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.2501). However, on review, it appears that the Agency of Original Jurisdiction (AOJ) determined additional development was required prior to adjudication of his higher rating claim, and thus, addressed this as a Supplemental Claim. Accordingly, the October 2018 rating decision considered the evidence of record up to the date the rating decision was issued, which was on October 12, 2018. The Board will not disturb this seemingly favorable finding and will also proceed to review the record up to October 12, 2018. VA Claims and Appeals Modernization, 84 Fed. Reg. 138, 167 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.104). The Veteran then timely appealed this rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). Entitlement to an initial rating in excess of 50 percent for PTSD, for the period from September 9, 2010 to September 6, 2018, and in excess of 70 percent from September 7, 2018 to October 12, 2018. Service connection for PTSD was granted in a January 2012 rating decision, and the AOJ assigned an initial 50 percent evaluation pursuant to 38 C.F.R. § 4.130, DC 9411, effective September 9, 2010. In an October 12, 2018 rating decision, the Veteran’s PTSD was increased to 70 percent, effective September 7, 2018. The Veteran contends that he should be assigned an initial rating in excess of 50 percent from September 9, 2010 to September 6, 2018, and a rating higher than 70 percent beginning September 7, 2018. See April 2019 notice of disagreement. The AOJ found that the September 7, 2018 VA contract examination noted a worsening of his service-connected PTSD. Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155. Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1. When rating the Veteran’s service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of the two disability evaluations is 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. 38 C.F.R. § 4.7. After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings apply to both initial and increased rating claims. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is warranted where objective evidence demonstrates 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. The criteria for a 100 percent rating include a non-exhaustive list of symptoms reflective of a total occupational and social impairment. A 100 percent evaluation is warranted for 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 ability 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. Id. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher from September 9, 2010 to September 6, 2018, or for a total disability rating beginning September 7, 2018. For the reasons that follow, the Board finds that a higher rating is not warranted for each of the periods on appeal. The Veteran’s symptoms resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating from September 9, 2010 to September 6, 2018. Beginning September 7, 2018, the Veteran’s PTSD symptoms resulted in a level of impairment that more nearly approximated the level of impairment associated with his current 70 percent rating. The evidence has not shown the Veteran’s PTSD symptoms result in total occupational and social impairment at any time during the period on appeal. At an initial August 2011 VA contract examination, the Veteran described his symptoms manifested with depression, irritability, issues with memory and focus, chronic pain, social avoidance, and panic attacks that were constant, continuous or ongoing. The severity of the symptoms was moderate. He indicated his symptoms affected daily functioning that resulted in interpersonal conflicts at work and home. He did not have trouble sleeping, had no history of violent behavior and did not have a history of suicide attempts. The Veteran was not undergoing treatment for his PTSD. He had no hospitalization or emergency room visits due to his PTSD symptoms. The Veteran reported having good relationships with his mother, siblings, and children. He had good work relationships at his job with the telephone company but noted interpersonal conflicts during his employment with the construction company he worked at for 40 years. The examiner noted he has not lost any time from work while performing this job. On objective mental status examination, he presented with appropriate appearance and hygiene. He had poor eye contact during the examination, but was oriented to person, place, and time. He had a disturbance of motivation and mood, flattened affect, and impaired impulse control. The examiner noted that his impaired impulse control affected his motivation and/or mood, as he becomes impulsively irritable, and then gets annoyed at himself for becoming angry. The Veteran reported having panic attacks less than once per week that mimicked heart attacks. There were signs of suspiciousness. He denied delusions and hallucinations. The examiner noted he had obsessive-compulsive behavior, but that it was not severe enough to interfere with routine activities. The examiner found that he had confusion, slowness of thought and difficulty understanding directions. He denied suicidal and homicidal ideation. His symptoms manifested with flattened affect, impairment in long-term and short-term memory, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner determined that the Veteran’s overall level of occupational and social impairment was best described as occupational and social impairment with reduced reliability and productivity. On September 7, 2018, the Veteran was afforded another VA contract examination. He reported the following symptoms: emotionally detached, anxiety, depression, insomnia, nightmares, intrusive thoughts, lack of pleasure, lack of motivation, panic attacks, irritability, anger outbursts, social isolation, and hypervigilance. He reported he has two children, raised four nieces, and lived with his mother. His symptoms manifested with depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, and inability to establish and maintain effective relationships. On mental status examination, the examiner found that he had adequate grooming and hygiene. He was oriented and alert, and his mood was anxious and depressed with flattened affect. He had no evidence of hallucinations or delusions or of suicidal or homicidal ideations. The examiner determined that the Veteran’s level of occupational and social impairment was best described as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. VA treatment records during the applicable periods are silent regarding his PTSD symptoms. Given the above, the Board finds the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximate the symptoms contemplated by a 50 percent rating, since the grant of service connection until September 6, 2018. A rating higher than 50 percent is not warranted at any time between September 9, 2010 and September 6, 2018. A higher rating of at least 70 percent requires more severe symptoms like those enumerated in the rating criteria, such as deficiencies in work, family relations, judgment; near-continuous panic; depression affecting the ability to function independently; neglect of personal appearance and hygiene; or difficulty in adapting to stressful circumstances. In this case, based on the only pertinent medical evidence of record during this period, which was the August 2011 VA contract examination report, his symptoms manifested with flattened affect, impairment in long-term and short-term memory, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. These are symptoms contemplated within the 50 percent rating criteria. The Veteran was noted to exhibit impaired impulse control, which is a symptom contemplated in the 70 percent rating criteria; however, the impaired control affected his motivation and/or mood and was not severe or frequent enough to warrant a higher rating. The Board has also considered his report of obsessive-compulsive behavior but finds that as it does not interfere with routine activities, the symptom also was not severe enough to warrant a 70 percent rating. Moreover, the examiner found that his symptoms resulted in overall impairment of occupational and social impairment with reduced reliability, where the symptoms were moderate in severity—this warrants the currently rated 50 percent rating. The opinion is probative, as it was provided by a psychologist and was based on a clinical examination and record review. The Veteran has not submitted evidence to indicate otherwise. As a result, the Board finds that an initial rating in excess of 50 percent for the period from September 9, 2010 to September 6, 2018, is not warranted. The Board finds that the evidence is also against a finding for a rating higher than 70 percent from September 7, 2018 to October 12, 2018. The Veteran’s PTSD manifests with symptoms consistent with the current 70 percent rating for this period and have been moderate to moderately severe during this period. A higher rating of 100 percent requires more severe symptoms similar to those enumerated in the rating criteria, such as gross impairment in thought process, persistent delusions, disorientation to time or place, inability to recall one’s own or names of close family members, being a persistent danger to self or others, or inability to perform activities of daily living. A review of the record has not shown the Veteran’s PTSD symptom manifest with the frequency and severity that is contemplated by a total rating. The September 7, 2018 VA contract examiner opined that the Veteran’s PTSD symptoms cause no more than occupational and social impairment with occasional decreased in work efficiency, which meets the criteria for a 30 percent evaluation. However, the AOJ assigned a higher 70 rating based on the manifestations of his reported PTSD symptoms, which showed a worsening when compared to the 2011 VA contract examination report. The symptoms reported at the September 2018 VA contract examination suggested moderate to moderately severe impairment, and certainly not total impairment from PTSD. This opinion is probative, as it was provided by a psychologist and was based on a clinical examination and record review. Further, the evidence shows the Veteran is not totally impaired in his social functioning. He lives with his mother and reported raising his four nieces. He had adequate grooming and hygiene. Further, he was oriented and alert at the examination, and had no evidence delusions, hallucinations, and suicidal or homicidal ideations. Given the nature, frequency and severity of the Veteran’s PTSD symptoms as shown by the cumulative evidentiary record, the Board finds that his level of functioning does not more nearly approximate total occupational and social impairment. As such, a rating in excess of 70 percent for PTSD from September 7, 2018 to October 12, 2018, is not warranted. In sum, the preponderance of the evidence is against the claim for an initial rating in excess of 50 percent for PTSD for the period from September 9, 2010 to September 6, 2018, and in excess of 70 percent from September 7, 2018 to October 12, 2018. The benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The claim is denied. There are no additional expressly or reasonably raised issues presented on the record. M. MCPHAULL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Tang, 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.