Citation Nr: 19128158 Decision Date: 04/11/19 Archive Date: 04/11/19 DOCKET NO. 14-09 072A DATE: April 11, 2019 ORDER An increased rating in excess of 50 percent disabling for posttraumatic stress disorder (PTSD) from November 1, 2013, is denied. FINDING OF FACT From November 1, 2013, the Veteran’s PTSD did not result in suicidal ideations, obsessive rituals, intermittently illogical, obscure, or irrelevant speech, feeling of panic or depression affecting his ability to function, impaired impulse control, such as unprovoked irritability with periods of violence, spatial disorientation, neglect of personal appearance and hygiene, or difficulty in adapting to stressful circumstances, including work or a work-like setting. CONCLUSION OF LAW The criteria for an increased rating in excess of 50 percent disabling for PTSD for the period from November 1, 2013, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, Part 4, including §§ 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from September 1967 to April 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Board awarded the Veteran an initial rating of 70 percent disabling for PTSD for the period from January to November 2008, while denying an increased rating in excess of 50 percent disabling for PTSD from January 2009 to September 2013, and remanding the issue of an increased rating in excess of 50 percent disabling for PTSD from November 1, 2013, for an additional development in light of the Veteran’s testimony during the July 2017 Board hearing that his PTSD have increased in severity. The remanded issue is presently before the Board. For VA purposes, when there is an approximate balance in the evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue is given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The U.S. Court of Appeals for Veterans Claims (Court) held that a claimant is only required to demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of a disability resulting from all the types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. A veteran’s entire history is reviewed when assigning a disability evaluation. Further, the Court has guided that, in determining the level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Correspondingly, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the period on the appeal, the assignment of staged ratings is necessary. The symptoms recited in the rating schedule for evaluating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). As noted supra, the Board remanded this matter for an additional development following the Veteran’s testimony that his PTSD became more severe from November 1, 2013, forward. The July 2018 VA examiner determined that the Veteran exhibited such symptoms as suspiciousness, depressed mood, mild memory loss, anxiety, chronic sleep impairment, and occupational and social impairment with reduced reliability and productivity. The examiner, however, observed that the Veteran was “neatly dressed” and “polite and cooperative during the examination.” Further, the examiner found that the Veteran was oriented in all four spheres, and his speech was of normal quantity and speed, with thought associations that were “tight and logical, with no evidence of delusions or hallucinations.” While the examiner found that the Veteran’s “affect was blunted[,] and his mood was mildly depressed,” the examiner noted that his remote-recall and recent recall abilities were good, and his “immediate recall was fair.” In addition, the examiner found that his “abstract thinking ability was concrete,” his concentration and insight were fair, “his judgment was adequate,” and his estimated intelligence was in the above-average range. The July 2018 VA examiner also recorded the Veteran’s report that he still had nightmares and flashbacks, but no suicidal ideations, even though the Veteran felt that his life was worthless because of his poor relationship with his wife, who was displeased with his tendency to stay home and avoid crowded gatherings, and because of the lack of any relationship with his children. The Veteran reported sleeping three-to-four hours a day, limiting his physical activity to yard work, limiting his social interactions to going to church, and abandoning his prior hobbies of stamp collecting and photography. In addition, the Veteran reported his wife’s witness observations that he could “get angry quick.” Finally, the Veteran informed the July 2018 VA examiner that he stopped taking his prescription medications because he was displeased with how they made him feel, and continued resorting to having “a drink or two” during his periods of depression. The Veteran clarified that he advised his mental health professional accordingly. In January 2019, the RO issued a Supplemental Statement of the Case evaluating his PTSD as 50 percent disabling during the period from November 1, 2013, forward. The Board finds that the Veteran’s PTSD symptoms more closely approximate those associated with the criteria applicable to 50-percent-disabling mental disorders. The psychiatric disability at issue here is rated under DC 9411 (PTSD) of the General Rating Formula for Mental Disorders. Pursuant to the General Rating Formula for Mental Disorders, a 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to: (1) flattened affect; (2) circumstantial, circumlocutory, or stereotyped speech; (3) panic attacks more than once a week; (4) difficulty in understanding complex commands; (5) impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); (6) impaired judgment; (7) impaired abstract thinking; disturbances of motivation and mood; and (8) difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. Here, the Veteran’s June 2018 examination did not reveal circumstantial speech, or panic attacks, or difficulty in understanding complex commands, or impairment of short- and long-term memory, or an impaired judgment, or an impaired abstract thinking, or disturbances of motivation and mood. However, the June 2018 VA examiner noted the Veteran’s flattened affect and recorded his report of the poor relationship with his wife, the complete absence of a relationship with his children, and social relationships limited to church attendance, with avoidance of large crowds and persistent desire to stay home. Therefore, the Board finds that the requirements of the 50-percent criteria are satisfied. In contrast, a 70 percent disability rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: (1) suicidal ideations; (2) obsessional rituals that interfere with routine activities; (3) speech that is intermittently illogical, obscure, or irrelevant; (4) near-continuous feeling of panic or depression affecting the ability to function independently, appropriately, and effectively; (4) impaired impulse control, such as unprovoked irritability with periods of violence; (5) spatial disorientation; (6) neglect of personal appearance and hygiene; (7) difficulty in adapting to stressful circumstances, including work or a work-like setting; and (8) inability to establish and maintain effective relationships. See id. The Veteran’s June 2018 examination did not reveal suicidal ideations, obsessive rituals, illogical or obscure speech, near-continuous feeling of panic, spatial disorientation, neglect of personal appearance and hygiene, or difficulty in adapting to stressful circumstances. Further, while the Veteran reported poor relationship with his wife and the absence of a relationship with his children, these symptoms do not amount to an inability to establish and maintain effective relationships; rather they more closely approximate a difficulty in establishing and maintaining effective work and social relationships. Moreover, while the Board acknowledges the Veteran’s report of his wife’s witness observations that he could “get angry quick,” his report does not suggest that his incidents of unprovoked irritability entail any violence. In sum, since the Veteran’s symptoms are assessed in toto, these few potentially overlapping symptoms do not alter the Board’s analysis because, in adjudicating a claim for an increased rating, the Board must consider all symptoms of a veteran’s mental condition that affect the level of his/her occupational or social impairment. See Mauerhan, 16 Vet. App. at 443. Finally, a 100 percent disability rating is assigned for a total occupational and social impairment due to such symptoms as: (1) gross impairment in thought processes or communication; (2) persistent delusions or hallucinations; (3) grossly inappropriate behavior; (4) persistent danger of hurting self or others; (5) intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); (6) disorientation as to time or place; and (7) memory loss for names of close relatives, or for the veteran’s own occupation or name. See 38 C.F.R. § 4.130. Here, the Veteran’s July 2018 examination has established that he does not have any of these symptoms. Given that the preponderance of evidence is against a finding that the Veteran’s PTSD has increased in severity in excess of 50 percent disabling for the period from November 1, 2013, the doctrine of the benefit of the doubt is not for application, and the claim is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anna Kapellan, Associate Counsel