Citation Nr: 21002335 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-00 619 : January 13, 2021 ORDER Entitlement to an initial 30 percent disability evaluation for posttraumatic stress disorder (PTSD) with depressive disorder for the period prior to January 2, 2020, is granted. Entitlement to an increased, 50 percent disability evaluation for PTSD with depressive disorder, for the rating period since January 2, 2020, is granted. FINDINGS OF FACT 1. For the rating period prior to January 2, 2020, the Veteran’s PTSD with depressive disorder was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms such as constricted affect, depression, sleep impairment, diminished interest, and flashbacks. 2. For the rating period since January 2, 2020, the Veteran’s PTSD with depressive disorder is manifested by symptoms equating in severity, frequency, and duration to occupational and social impairment with reduced reliability and productivity due to such symptoms as impaired memory, anxiety, depression, sleep impairment, and disturbances of motivation and mood; occupational and social impairment with deficiencies in most areas is not shown. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 30 percent, but no higher, for PTSD with depressive disorder, for the rating period prior to January 2, 2020, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for a disability rating of 50 percent, but no higher, for PTSD with depressive disorder, for the rating period since January 2, 2020, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1989 to September 2010. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a November 2010 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Nashville, Tennessee. The November 2010 rating decision, in pertinent part, granted entitlement to service connection for depressive disorder and assigned a noncompensable disability evaluation, effective October 1, 2010. During the pendency of the appeal, in a September 2020 rating decision, the Veteran’s depressive disorder was recharacterized as PTSD with depressive disorder, and a 30 percent disability evaluation was assigned effective January 2, 2020. As the Veteran has not been granted the maximum benefits allowed, the claims for increased disability ratings remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) of the Board in September 2018. A transcript of that proceeding has been associated with the record. In July 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case was most recently issued in September 2020. The case has since been returned to the Board for appellate review. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD with depressive disorder is currently evaluated as noncompensable (zero percent) for the rating period prior to January 2, 2020 and 30 percent disabling for the rating period thereafter, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. A 10 percent disability evaluation is assigned under this code for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent disability rating is warranted where there is 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, chronic sleep impairment, and mild memory loss. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2019). Under 38 C.F.R. § 4.130, Diagnostic Code 9432, a 50 percent disability rating requires 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-term 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. See 38 C.F.R. § 4.130, Code 9411. For the next higher 70 percent evaluation to be warranted, there must be occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms such as: suicidal ideation; obsessive 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); and an inability to establish and maintain effective relationships. Id. A 100 percent rating is provided 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 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. 38 C.F.R. §§ 4.125 – 4.130. When determining the appropriate disability evaluation under the general rating formula, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. See Vazquez–Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed.Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be “due to” those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 117–18. 1. Entitlement to an increased disability evaluation for PTSD with depressive disorder, initially rated as noncompensable. After a review of all the evidence, the Board finds that the Veteran’s service-connected PTSD with depressive disorder more closely approximates the rating criteria for a 30 percent disability rating, but no higher, for the rating period prior to January 2, 2020. In this regard, the Board observes that the objective clinical evidence of record indicates that the Veteran experienced some social or occupational impairment due to depression, anxiety, intrusive thoughts, avoidance of stimuli, and sleep impairment. At his August 2010 VA examination, he reported experiencing depression, nightmares, diminished interest in activities, and sleep impairment; he denied experiencing auditory and visual hallucinations, panic attacks, and suicidal ideation. The Veteran had good eye contact, good hygiene, and his thought process was goal-directed, and he had clear speech. Although the VA examination report indicates that the Veteran’s social life was restricted due to his PTSD with depressive disorder, his sibling and occupational relationships were reported to be good. The Board acknowledges that the Veteran complained of anxiety and depression at his August 2010 VA examination. However, the current 30 percent disability evaluation accounts for the Veteran’s symptomatology. In this regard, the Board finds that the criteria for a disability rating of 50 percent have not been met or more nearly approximated. The evidence does not show that the Veteran, during the rating period prior to January 2, 2020, experienced flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking, as contemplated by a 50 percent disability rating under Diagnostic Code 9411. Although fluctuations in symptomatology and overall impairment are inevitable during the course of such a lengthy appeal period, the Board finds that the Veteran consistently had symptoms of anxiety and depression, sleep impairment, and intrusive thoughts; there is no evidence of symptoms such as ritualistic or obsessive behavior, hallucinations, delusions, homicidal ideation, or impaired speech or thought processes. Moreover, his symptoms as noted do not equate in severity, frequency, or duration to occupational and social impairment with reduced reliability and productivity. While he had a depressed or anxious mood, his judgment and thinking were unimpaired, and he did not report consistent problems with work or family. Consequently, the weight of the evidence is against a rating higher than 30 percent for PTSD with depressive disorder for the rating period prior to January 2, 2020. As such, the Board finds that the Veteran’s PTSD with depressive disorder met the criteria for a 30 percent disability evaluation during the rating period prior to January 2, 2020. 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an increased disability evaluation for PTSD with depressive disorder, rated as 30 percent disabling for the rating period since January 2, 2020. After a review of all the evidence, the Board finds that the Veteran’s service-connected PTSD with depressive disorder more nearly approximates the criteria for a 50 percent disability evaluation for the rating period since January 2, 2020. The Board finds that the Veteran’s psychiatric symptoms have been relatively consistent, and that the 50 percent evaluation takes into account the Veteran’s social and occupational impairment for the rating period since January 2, 2020. Throughout the rating period, the Veteran’s PTSD with depressive disorder has been characterized by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, depression, anxiety, sleep impairment, and disturbances of motivation and mood. The Board points out that the evidence shows that the Veteran does not have symptoms such as obsessional rituals, impaired impulse control, delusions or hallucinations, spatial disorientation, or illogical speech or thought processes. He is alert, oriented, and cooperative upon examination, and his PTSD with depressive disorder does not prevent him from functioning independently. The Board acknowledges that the Veteran complained of sleep impairment, mild memory loss, disturbances of mood and motivation, anxiety, and depression at his January 2020 and August 2020 VA examinations. However, the current 50 percent disability evaluation accounts for the Veteran’s reduced reliability and productivity. In this regard, the Board finds that the criteria for a disability rating of 70 percent have not been met or more nearly approximated for any part of the rating period since January 2, 2020. His symptoms do not equate in severity, frequency, or duration to the level of occupational and social impairment required to constitute deficiencies in most areas such as thinking, judgment, work, school, family relations and mood. The evidence also does not show that the Veteran experienced symptoms such as obsessional rituals, near continuous panic or depression affecting the ability to function independently, impaired impulse control, or spatial disorientation, as contemplated by a 70 percent disability rating under Diagnostic Code 9411. At the January 2020 and August 2020 VA examinations, the Veteran had depression and anxiety, but he did not have symptoms such as homicidal ideation, delusions or hallucinations, or impaired thought processes. At these examinations, and in statements, the Veteran complained of depression, sleep impairment, anxiety, hypervigilance, hyperstartle response, memory loss, and diminished interest, but the examinations indicate that the Veteran is alert and oriented, with appropriate speech and behavior, and without evidence of suicidal or homicidal ideation. The Veteran’s insight and judgment are not impaired, and his hygiene has been consistently good. The VA examiners note the Veteran’s symptoms, such as sleep impairment, nightmares, anxiety, and depression; however, the Board reiterates that those symptoms are nearly the same as those listed in the criteria for a 50 percent rating and the examiners’ characterization of these symptoms were indicative of at most reduced reliability and productivity. The VA examiners assessed that the Veteran had no more than moderate symptoms of PTSD with depressive disorder, which interfered with occupational functioning and social relationships for the Veteran, but do not cause such social and occupational impairment as to render him deficient in most areas. See 38 C.F.R. § 4.2 (it is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present). Although fluctuations in symptomatology and overall impairment are inevitable, the Board finds that the Veteran has consistently had symptoms of depression, sleep impairment, and disturbances of mood and motivation; however, there is no evidence of symptoms such as ritualistic or obsessive behavior, hallucinations, delusions, homicidal ideation, or impaired speech or thought processes. Moreover, his symptoms as noted do not equate in severity, frequency, or duration to occupational and social impairment with deficiencies in most areas such as work, school, family relations, thinking, judgment, and mood. While he has had a depressed or anxious mood, his judgment and thinking are not impaired, and he has not reported consistent problems with work or family. Consequently, the weight of the evidence is against a rating higher than 50 percent for PTSD with depressive disorder. As such, the Board finds that the Veteran’s PTSD with depressive disorder met the criteria for a 50 percent disability evaluation for the rating period since January 2, 2020. Thus, applying the facts to the criteria set forth above, the Veteran is entitled a 50 percent disability evaluation, but no more, for his service-connected PTSD with depressive disorder for the rating period since January 2, 2020. 38 C.F.R. §§ 4.3, 4.7. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.