Citation Nr: 20009736 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 14-31 308 DATE: February 5, 2020 ORDER Entitlement to an initial rating greater than 30 percent for posttraumatic stress disorder (PTSD) prior to September 27, 2018 is denied. Entitlement to an increased rating of 50 percent, but no higher, for PTSD from September 27, 2018 to October 11, 2018, is granted. Entitlement to an increased rating greater than 50 percent for PTSD from October 12, 2018 is denied. FINDINGS OF FACT 1. Prior to September 27, 2018, the Veteran’s PTSD was manifested by symptoms resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The Veteran’s PTSD was not manifested by symptoms resulting in occupational and social impairment with reduced reliability and productivity. 2. From September 27, 2018, the Veteran’s PTSD was manifested by symptoms resulting in occupational and social impairment with reduced reliability and productivity. His PTSD was not manifested by symptoms resulting in occupational and social impairment, with deficiencies in most areas. CONCLUSIONS OF LAW 1. Prior to September 27, 2018, the criteria for an initial disability rating greater than 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2018). 2. From to September 27, 2018 to October 11, 2018, the criteria for a disability rating of 50 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2018). 3. From to October 12, 2018, the criteria for a disability rating greater than 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1989 to March 1993. He appeals an October 2013 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to an initial rating greater than 30 percent for PTSD. In April 2018, the Board of Veterans’ Appeals (Board) remanded the claim to obtain private medical records and conduct a psychiatric examination. Following the Board remand, the AOJ increased the Veteran’s PTSD rating to 50 percent, effective October 12, 2018, the date of his most recent VA psychiatric examination. See September 2019 rating decision. The claim is now back before the Board and there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When, as here, a Veteran seeks an increased evaluation, it is presumed the maximum benefit allowed by law and regulation is sought and such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering an initial rating, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether 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, 509-10 (2007). Here, the Veteran contends his PTSD is more severe than his 30 percent disability rating prior to October 12, 2018 and 50 percent thereafter, would indicate under 38 C.F.R. § 4.130, Diagnostic Code 9411. According to 38 C.F.R. § 4.130, Diagnostic Code 9411, a 30 percent rating is warranted for 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 normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted 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 effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, and a 100 percent rating is warranted for total occupational and social impairment. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. See 38 C.F.R. § 4.126. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (2013). Prior to September 27, 2018 The Veteran was afforded a September 2013 VA examination and he also provided medical records from his private psychiatrist, Dr. H.J., including a November 2012 examination report. The Veteran contends this examination report by Dr. H.J. shows “that his PTSD symptoms caused major impairment.” See November 2013 notice of disagreement (NOD). However, this conclusion is not found in any of Dr. H.J.’s medical records and cannot be gleaned by his medical findings. The Board has considered the Veteran’s contentions and all the lay and medical evidence of record and concludes the Veteran’s PTSD symptoms, prior to September 27, 2018, more closely approximate a 30 percent rating and do not rise to the level of “occupational and social impairment with reduced reliability and productivity,” the criteria for the next higher rating. At the Veteran’s examinations, both psychiatrists found the Veteran suffered from anxiety and chronic sleep impairment. See November 2012 Dr. H.J. examination report; see also September 2013 VA examination report. The VA psychiatrist found the Veteran’s symptoms “not severe enough either to interfere with occupational and social functioning or to require continuous medication.” See September 2013 VA examination report. In contrast, Dr. H.J.’s examination and subsequent treatment of the Veteran, prior to September 27, 2018, reflects the Veteran had greater social and occupational impairment with additional symptoms of depression, exaggerated startle response, irritability, and a general loss of interest in activities and people. See November 2012 Dr. H.J. examination report. Although the Board finds the Veteran exhibits these additional symptoms described by Dr. H.J. and that his symptom picture prior to September 27, 2018 more closely approximates the results of Dr. H.J.’s examination report, his symptom picture does not reflect the frequency, duration, or severity to warrant a higher rating of 50 percent. At the November 2012 examination, Dr. H.J. found the Veteran “appropriately dressed, [with] good eye contact, [and appeared] depressed and anxious with affect congruent to mood.” See November 2012 Dr. H.J. examination report. Dr. H.J. found the Veteran to be a relatable and reliable historian with proper communication and orientation, “but he [had] problems with focus, concentration, and recall.” Id. The record reflects the Veteran has consistently denied any delusions, hallucinations, or suicidal ideation. Id. Socially, the Veteran reported he does not have many “interactions with friends” and has “problems with socialization…he stays home most of the time [and] he doesn’t go anywhere unless he has to.” See April 2014 and October 2014 Dr. H.J. treatment records. However, the Veteran also reported he had seven siblings and regularly interacts with his family. See September 2013 VA examination report. He further reported he was the caretaker for his mother until she died in 2004 and then cared for his ailing sister until she recovered and moved out of his home in September 2013. Id. This regular familial interaction reflects that the Veteran is able to maintain effective social relationships, albeit with some difficulty. Additionally, the Veteran reported he worked in “odd landscaping jobs” which further reinforces that the Veteran is able to establish and maintain relationships. Id. While he is treated privately for his PTSD, the Veteran has extensive VA treatment records for other physical conditions. At his VA appointments, the Veteran was regularly asked “mental health questions.” See, e.g., December 2014 VA treatment records. The record reflects only one instance in August 2017 where the Veteran responded affirmatively to a depression screening; otherwise, every response by the Veteran was negative to thoughts of depression and disinterest in activities, he also denied any current suicidal ideation and anxiety. See, e.g., August 2012, January 2014, March 2015, and August 2016 VA treatment records. This evidence reflects the Veteran’s psychiatric symptoms caused occasional impairment to the Veteran’s occupational and social function, but the Board finds these intermittently reported symptoms did not reach the level of severity required to meet a 50 percent rating. In summation, during the appeal period the Veteran reported depressed mood, anxiety, hypervigilance, and sleep impairment. He did not exhibit panic attacks, memory loss or impairment to speech, thought or judgment. Finally, the Veteran has an appropriate affect, understands complex commands, and maintains varied social and occupational relationships. Based on the entirety of the record, the Board finds the Veteran is generally functioning satisfactorily with routine behavior and does not exhibit the reduced reliability and productivity necessary for an increased rating of 50 percent. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Thus, the Board finds the preponderance of the evidence does not favor the Veteran’s claim and the criteria for an increased disability rating in excess of 30 percent for PTSD prior to September 27, 2018 are not met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. From September 27, 2018 Dr. H.J. stated he had not treated the Veteran from August 2015 until he requested another psychiatric examination in September 2018. See September 2018 Dr. H.J. examination report. Indeed, the record is absent of any psychiatric treatment from August 2015 until the Veteran’s examination by Dr. H.J. on September 27, 2018. As analyzed below, the record reflects the Veteran’s symptoms worsened from September 27, 2018. At the September 2018 examination, the Veteran expressed the same symptoms discussed above and he also displayed “mild memory loss, flattened affect…[and an] inability to establish and maintain effective relationships.” Id. However, when questioned about his memory the Veteran stated, “it is fine, I guess.” Id. Dr. H.J. also found the Veteran’s symptoms “affect his ability to sustain friendships and relationships;” however, the Veteran stated, “I have the same friends that I had before. I do not make any attempts to make new friends…I haven’t met anyone that I really like.” Id. Further, the Veteran reported to a VA psychiatrist that his relationships with extended family is “pretty good” and “he remains socially connected via regular church attendance.” See October 2018 VA examination report. Despite this conflicting information regarding the Veteran’s social relationships, the September 2018 examination does reflect an increase in the Veteran’s PTSD symptoms so as to warrant a higher rating. October 2018 and April 2019 VA examiners also found increased symptoms that mirrored those found in Dr. H.J.’s examination report. VA examiners stated the Veteran’s “PTSD is characterized by [non-excessive] persistent re-experience of traumatic events, avoidance behavior, negative alterations in cognitions, numbing behavior, and hyperarousal.” See October 2018 VA examination report. During the October 2018 examination, the Veteran reflected general behavior within normal limits, no psychoses, and the examiner found “no evidence of significant social discomfort or anxiety during the interview.” See October 2018 VA examination report. However, this report differs with both Dr. H.J and the April 2019 VA examiner’s findings. In their examinations, the Veteran was in a “negative emotional state” with anxious and flattened affect. See April 2019 VA examination report. This disparity of symptoms presented at his three examinations affirms that the Veteran’s symptoms do not rise to the severity required for a 70 percent rating. He did not report near-continuous panic or depression, was not found neglectful of his appearance, and did not report difficulty adapting to stress. Id. Furthermore, all three psychiatrists found the Veteran “well groomed, cooperative, fully oriented [and] maintained good eye contact” while his “thought process appeared logical and intact.” See October 2018 and April 2019 VA examination reports; see also September 2018 Dr. H.J. examination report. In summation, the Veteran reported “no major changes in his mental health history” since his last 2013 VA examination. See October 2018 VA examination report. The Board finds, however, the evidence from September 27, 2018 reflects an increase in severity of symptoms warranting a 50 percent disability rating. This evidence includes “impairment of short- and long-term memory,” difficulty establishing effective relationships, and flattened affect. See April 2019 VA examination report. This evidence does not, however, more closely approximate “social and occupational impairment in most areas,” the criteria for the next highest rating. See 38 C.F.R. § 4.130. The record reflects the Veteran is able to establish and maintain effective relationships, his depression and anxiety do not affect his ability to function independently, and he is not a danger to himself or others. Accordingly, the Board grants an increased rating of 50 percent, but no higher, for PTSD from September 27, 2018 to October 11, 2018, and denies an increased rating greater than 50 percent from October 12, 2018. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.