Citation Nr: 20021440 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 16-62 163 DATE: March 25, 2020 ORDER An initial rating in excess of 30 percent prior to March 7, 2018, and in excess of 50 percent thereafter, for posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT 1. Prior to March 7, 2018, the Veteran’s PTSD was manifested by symptomatology resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, without more severe manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. 2. Since March 7, 2018, the Veteran’s PTSD was manifested by symptomatology resulting in occupational and social impairment with reduced reliability and productivity, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent prior to March 7, 2018, and in excess of 50 percent thereafter, for PTSD, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board dismissed the claim due to the death of the Veteran during the pendency of the appeal. However, the appellant has been properly substituted for the Veteran and resumed his place on the docket. Entitlement to an initial rating in excess of 30 percent prior to March 7, 2018, and in excess of 50 percent thereafter, for PTSD. The appellant contends that the Veteran’s PTSD symptoms caused a greater functional impact than was reflected by the currently assigned rating. In this regard, she and the Veteran reported worsening problems with being easily irritated, trouble sleeping, anxiety, depression, being confrontational, and not being social. Consequently, she claims that an increased rating for PTSD is warranted. However, after a review of the record, the Board finds that his symptoms, and resulting occupational and social impairment, are contemplated by the currently assigned disability ratings. 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran’s service-connected PTSD is evaluated as 30 percent disabling prior to March 7, 2018, and 50 percent disabling thereafter, under the criteria of DC 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under such DC, 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 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, recent events). Id. A 50 percent rating is warranted when there is 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 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where there is 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 rating is warranted when there is 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. Id. The evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation...requires an ultimate factual conclusion as to the Veteran’s level of impairment in most areas.” Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “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.” 38 C.F.R. § 4.126(a). The Veteran underwent two VA psychiatric examinations during the pendency of the appeal. Initially, the Veteran underwent a VA psychiatric examination in August 2016, at which point the Veteran was diagnosed with PTSD. The examiner endorsed the Veteran with an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In doing so, the examiner noted the Veteran had been married for 24 years, with two children from a previous marriage. He had on and off contact with his daughter, and seldom had contact with his son. The Veteran reported he and his wife have a few friends that they get together with to go to eat occasionally. He further reported that after going to the Honor Flight, he has been getting together with seven other guys from Fremont about once a month for a support group. The Veteran reported that he retired in 2013 due to medical issues, which he later described as a broken ankle with resulting problems, but he worked in a box factory for 40 years prior to such injury. He noted that he is limited in what he can do, but he may do things around the house and do things with his wife. Turning to his psychiatric function, the Veteran was oriented in all spheres, knowing the month, day, and year, and knew the location of the building they were in. His attention and concentration were intact. Notably, the Veteran described his mood as “lost”. He stated that his sleep depends on how his body is feeling, noting that if his body is hurting then he has trouble, but if it is not, then he sleeps okay, but he did not know if he had nightmares. Veteran’s insight and judgment were within normal limits, and he was able to interpret a proverb, indicating normal abstract reasoning. His memory for remote, recent and immediate memory were intact, including being able to report that on the previous day he went to the store and picked up tree branches out of the yard. The Veteran further reported that he constantly feels on guard. The examiner noted the Veteran had explicit symptoms of a depressed mood, anxiety, and chronic sleep impairment. The examiner specifically noted that other symptoms were present, and noted in the exam, but they do not rise to the severity to be explicitly noted or are transient. Finally, when asked, the appellant added that at night the Veteran will at times talk in his sleep, and have nightmares. She notes that he also gets angry easily, at little things, but does not get violent, and he gets upset when watching television about military things. In an August 2018 rating decision, the AOJ raised the Veteran’s disability rating to 50 percent, which was based on findings from an August 2018 VA PTSD examination. The Board notes that, although the Veteran had an appeal to increase his disability rating, he nonetheless filed an intent to file on March 7, 2018, and a formal claim for an increased rating in May 2018, resulting in the August 2018 VA examination. At such time, the Veteran had a diagnosis of PTSD only still, but the examiner endorsed a worsening severity equivalent to an occupational and social impairment with reduced reliability and productivity. The Veteran reported that he misses being able to do things around the house that he can’t do since he broke his ankle in 2013 and stopped working. The examiner also noted that the Veteran had two family members pass away in the interim period between examinations. The Veteran stated he missed being able to walk his dogs, that e was still attending his groups once a month, but he noted it despondently, and noted that only one or two members had been showing up lately. Turning to his psychiatric function, the examiner noted his mood was dysthymic with a congruent affect. However, he was pleasant and cooperative in the interview, and his insight, judgment, and impulse control appeared intact. The examiner noted specific symptoms of a depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbance in motivation and mood. The Board notes that while the Veteran received VA treatment for a variety of physical disorders, he has denied receiving treatment for his PTSD at both examinations of record. Nonetheless, the Veteran’s treatment records include some notation referable to his psychiatric symptomatology, which show largely the same functional impairment as the VA examinations of record. In this regard, December 2018 treatment records note poorly controlled anxiety, for which a consult was scheduled. The December 2018 psychiatric consult occurred the next day, at which he denied any preoccupation with nightmares, flashbacks, but acknowledged anxiety in the context of having had radiation therapy, chemotherapy for medical issues, but denied insomnia, desire for food, helplessness, hopelessness, pessimistic feeling, suicidal or homicidal thoughts, panic attacks, active nightmares or flashbacks. The physician further noted the Veteran was cooperative, pleasant, interactive, and had good eye contact. He denied excessive anxiety or depressive symptoms, symptoms of psychosis, mania. The physician noted he did not have poor attention or concentration, and he had no obvious memory deficit, noting the Veteran does not believe his mental health problems are severe enough to require treatment. In contrast however, the appellant has submitted numerous statements throughout both periods on the appeal. While she does not report symptoms above and beyond those noted on examination, she did emphasize that the Veteran did not like to talk about his PTSD, and thus did not adequately describe his symptomatology. She further emphasized his irritability, and his quickness to anger, as well as his dislike for social events. Based on the foregoing, the Board finds that the Veteran’s PTSD resulted in, at most, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks prior to March 7, 2018, thus warranting no more than the currently assigned 30 percent rating for such period. Thereafter, his PTSD was manifested by symptomatology resulting in occupational and social impairment with reduced reliability and productivity, likewise warranting no more than the currently assigned 50 percent rating for such period. The Board notes that the assignment of a staged rating as of March 7, 2018, is proper as that is the date his increase in severity became factually ascertainable. Initially, the Board notes that neither the Veteran nor the appellant have described any symptoms commensurate to a 70 percent or 100 percent disability rating. Nor have any such symptoms been noted on examination or in the medical evidence of record. Rather, the Board notes that most of the Veteran’s reported and documented symptoms fall within the criteria contemplated by a 30 percent rating under the General Rating Formula. The only symptom which the Veteran has endorsed that would warrant a higher rating is disturbance of motivation and mood, which falls under the criteria of a 50 percent rating, and was noted at the March 2018 examination. However, the Board finds that the record as a whole weighs against a finding of a higher rating prior to March 7, 2018, for such symptom as it was not noted previously. In contrast, the Veteran’s statements show he wanted to do more activities, but was limited by his physical disabilities. The record is consistent with his continuing lack of physical ability resulting in worsening mental health as reflected by his staged rating. Finally, the Veteran’s reported symptoms focus primarily on his temper, distrust of people, and difficulty in relationships. The Board notes that a difficulty in establishing and maintaining relationships is a symptom considered by a 50 percent rating. However, even after considering his reported symptoms, both the VA examiners declined to endorse such impairment. Further, although the Board acknowledges that the Veteran’s psychiatric symptoms do impact his relationships, the record reflects that he has maintained numerous social and familial relationships, and although his irritability puts strain on such relationships, the record reflects that he is not unable to establish and maintain such relationships. Further, the record as whole does not warrant establishment of a 50 percent rating prior to March 7, 2018 on the basis of such symptom as the rest of the Veteran’s symptomatology was mild at that point, and as noted above, the August 2016 examiner declined to endorse such symptom and explicitly noted that symptoms he declined to endorse were not severe enough to warrant such, which concurrently noting the Veteran’s social function. Importantly, the Veteran’s irritability never progressed to impaired impulse control. Consequently, while the Board acknowledges the Veteran’s PTSD caused social and occupational impairment, the record reflects his symptoms are wholly contemplated by his current 30 percent and 50 percent ratings. Therefore, a higher initial rating for PTSD is not warranted. In reaching its determination, the Board acknowledges the Veteran’s and the appellant’s sincerely held belief that the severity of his PTSD symptoms warranted a higher disability rating. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran was, and the appellant is, competent to describe his symptomatology, they are not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of her disabilities. Therefore, as the Veteran’s PTSD was not manifested by symptoms of a nature, severity, frequency, or duration contemplated by a 50, 70, or 100 percent rating and does not result in more severe manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment prior to March 7, 2018, a rating in excess of 30 percent is not warranted for such period. Similarly, as the Veteran’s PTSD was not manifested by symptoms of a nature, severity, frequency, or duration contemplated by a 70 or 100 percent rating and does not result in more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment since March 7, 2018, a rating in excess of 50 percent is not warranted for such period. The Board has also considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected PTSD; however, the Board finds that his symptomatology has been stable throughout the periods on appeal. Therefore, assigning additional staged ratings for such disability is not warranted. Further, neither the Veteran, the appellant, nor their representatives have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant’s claim for an increased rating for the Veteran’s PTSD. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonathan M. Estes 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.