Citation Nr: 21002419 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-32 206 DATE: January 13, 2021 ORDER Entitlement to an evaluation of 70 percent, but no higher for posttraumatic stress disorder (PTSD) prior to February 27, 2020, is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to an increased evaluation in excess of 70 on/after February 27, 2020 for PTSD is denied. FINDINGS OF FACT 1. The evidence as likely as not supports a finding that prior to February 27, 2020 the severity, frequency, and duration of the Veteran’s symptoms more closely approximate occupational and social impairment with deficiencies in most areas. 2. The preponderance of the evidence supports a finding that on/after February 27, 2020 the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the requirements for a disability rating of 70 percent, but no higher, for PTSD prior to February 27, 2020 are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411 (2019). 2. The criteria for an increased evaluation in excess of 70 percent on/after February 27, 2020 for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1988 to August 1992. The Veteran testified before the undersigned at a Board hearing in March 2019. A transcript is of record. In July 2019, the Board remanded the Veteran’s claims for additional development. The Board finds that there was substantial compliance with the July 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). While undergoing Remand development, a 70 percent rating for PTSD was granted effective February 27, 2020, the date of an examination. The Board notes that at the time of the hearing, and on the most recent examination, the Veteran reported being employed, As such, the issue of individual unemployability is not raised by the record. Increased Ratings 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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 reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. (2019). While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. PTSD Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). 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. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Diagnostic Code 9411. 1. Entitlement to an increased evaluation in excess of 50 percent prior to February 27, 2020 and in excess of 70 percent thereafter for PTSD The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating in excess of 50 percent prior to February 27, 2020 and in excess of 70 percent thereafter for post-traumatic stress disorder (PTSD). The instant appeal stems from a July 2014 application for an increased rating. The Board concludes that prior to February 27, 2020, the Veteran’s symptoms did cause the level of impairment required for a disability rating of 70 percent prior to February 27, 2020. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. As will be set out below, the Board also concludes that on/after February 27, 2020, the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. In a December 2014 VA PTSD examination, the examiner diagnosed the Veteran with PTSD and noted that the Veteran experiences occupational impairment with reduced reliability and productivity. The examiner diagnosed the following symptoms: depressed mood; anxiety; chronic sleep impairment; mild memory loss; a flattened affect; and disturbances of mood and motivation. The examiner also noted that the Veteran is capable of managing his financial affairs. The examiner reported that the Veteran is receiving limited treatment and is minimally compliant due to sedation. Moreover, the examiner reported that the Veteran is still having difficulty controlling his temper, nightmares, anxiety, and loss of interest in usual activities due to his PTSD. In a July 2017 VA PTSD examination, the examiner diagnosed the Veteran with PTSD and moderate alcohol use disorder. The examiner noted that the Veteran experiences occupational impairment with reduced reliability and productivity. The examiner diagnosed the following symptoms: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; disturbances of motivation; and difficulty establishing and maintaining effective social relationships. The examiner also noted that the Veteran is capable of managing his financial affairs. The Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating prior to February 27, 2020. Prior to February 27, 2020, the Veteran experienced an inability to establish and maintain effective relationships and experiences occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. He also experiences depression affecting the ability to function independently, appropriately and effectively; and impaired impulse control (such as unprovoked irritability with periods of violence) towards others. Based on a review of the record, the Board finds, with resolution of doubt, that a higher evaluation of 70 percent for PTSD prior to February 27, 2020, but no higher is warranted. An examination of the findings prior to February 27, 2020 reveal that the Veteran has experienced the following PTSD symptoms: sleep disturbances; irritability and trouble managing his anger; moderate to considerable social impairment; depression lasting four to five days at a time; panic attacks; difficulty controlling his temper; impaired impulse control (such as unprovoked irritability with periods of violence) towards others; difficulty maintaining effective social relationships; and periods of unemployment since 2009 due to his irritability and unprovoked violence towards other co-workers and supervisors. The Veteran’s symptomology prior to February 27, 2020 does not meet the criteria that would warrant a schedular 100 percent evaluation. The evidence of records reveals that the Veteran does not currently suffer from gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior 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. As the record indicates, the Veteran reported seeing one of his children every three months and regularly watching sporting event with his friends. The Veteran also reported that he has three friends that visits regularly two to three times a week. The Board also reviewed and carefully considered the Veteran’s lay statements and hearing testimony asserting that the severity of his PTSD had increased and an evaluation in excess of 50 percent prior to February 27, 2020 is warranted. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to PTSD as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, resolving all doubt in the Veteran’s favor, the Board finds that the level of severity of the Veteran’s PTSD satisfy the criteria for a higher disability evaluation under DC 9411 and the Veteran's claim for an increased 70 percent rating prior to February 27, 2020 is granted. 2. The Board now turns to the Veteran’s claim of an increased evaluation in excess of 70 percent on/after February 27, 2020 for PTSD. In a February 2020 VA PTSD examination, the examiner diagnosed the Veteran with PTSD and alcohol use disorder in remission. During the examination, the Veteran reported that his mood had become increasingly irritable with social withdrawal and poor frustration tolerance which he attributes to his divorce and the recent ending of a relationship with his girlfriend. The Veteran also reported a distant relationship with his family members and siblings. Specifically, he described a physical altercation with his brother which resulted in estrangement. Progressive difficulty in social setting with panic attacks, sleep disturbances, fatigue, anhedonia, a startle response, and distrust of others with a lack of friendly relationships was also reported by the Veteran. The Veteran also reported that he was currently employed after periods of recurrent unemployment, but has missed several days of work due to his PTSD symptoms. The examiner diagnosed the Veteran as negative for suicidal ideation, but the following symptoms were diagnosed: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss; disturbance of mood and motivation; difficulty in establishing and maintaining effective social and work relationships; difficulty in adapting to stressful circumstances; impaired impulse control with period of violence; and an intermittent inability to perform the activities of daily living including maintenance of minimal personal hygiene. The examiner noted that the Veteran was capable of managing his own financial affairs. Occupational and social impairment was noted with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. The Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking and/or mood. Further, while the February 2020 VA PTSD examiner record shows that the Veteran reported the following: perceived total occupational and social impairment involving increased irritable; social withdrawal; poor frustration tolerance; and occasional impaired impulse control with periods of violence; the duration and frequency of these reported symptoms do not appear to be of such severity to warrant the assignment of a 100 percent rating for total social and occupational impairment. In fact, during his February 2020 VA examination, the Veteran reported that he was currently employed and continues to work as an electrician with his PTSD symptoms occasionally interfering with his work performance at a frequency of twice a month. The Board also reviewed and carefully considered the Veteran’s lay statements and hearing testimony asserting that the severity of his PTSD had increased and an increased evaluation in excess of 70 percent is warranted. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to PTSD as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). While the Veteran reports that the severity of his PTSD has increased on/after February 27, 2020, the competent and credible evidence of record reveals that the Veteran does not experience 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. The Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. The Board finds that based on the evidence of the claims file, the 70 percent evaluation currently assigned better approximates the trajectory of the Veteran’s current PTSD symptoms. As the Board reviewed the Veteran’s records and determined that they do not support an increased disability rating in excess of 70 percent for this disorder, the evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102 (2019). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elliot Harris, 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.