Citation Nr: 21002932 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-29 686 DATE: January 19, 2021 ORDER The claim of entitlement to an initial evaluation in excess of 30 percent, but no higher than 50 percent, from January 28, 2011, to April 12, 2012, for posttraumatic stress disorder (PTSD) is granted. The claim of entitlement to an evaluation in excess of 50 percent from April 13, 2012, to January 14, 2019, for PTSD is denied. The claim of entitlement to an evaluation of 70 percent, but no higher, from January 15, 2019, for PTSD is granted. FINDINGS OF FACT 1. From January 28, 2011 to April 12, 2012, the severity, frequency, and duration of the Veteran’s PTSD symptoms most closely approximated occupational and social impairment with reduced reliability and productivity but did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. April 13, 2012 to January 14, 2019, the severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 3. From January 15, 2019, the severity, frequency, and duration of the Veteran’s symptoms demonstrated deficiencies in most areas, but did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation in excess of 30 percent, but no higher than 50 percent, from January 28, 2011 to April 12, 2012 for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2019). 2. The criteria for entitlement to an evaluation in excess of 50 percent from April 13, 2012 to January 14, 2019 for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, DC 9411 (2019). 3. The criteria for entitlement to an evaluation in excess of 70 percent from January 15, 2019 for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, DC 9411 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from June 1971 to March 1974, June 1981 to June 1985, March 1988 to January 1990, December 1990 to February 2003, and January 2006 to July 2007. The Board acknowledges the extensive service of the Veteran and notes that among his many commendations, the Veteran received the Combat Infantryman Badge. These matters are before the Board of Veteran’s Appeals (Board) from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD at 30 percent disabling effective January 28, 2011. The Veteran’s rating was later increased to 50 percent, effective April 13, 2012, and increased to 70 percent, effective February 10, 2020. See March 2017 and July 2020 rating decisions. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the Central Office in Washington, D.C., in January 2019. A written transcript of that hearing has been prepared and associated with the evidence of record. In April 2019, the Board remanded the issue back to the RO for additional development, including an updated and adequate VA examination of the severity of the Veteran’s condition. Pursuant to the Board’s remand directives, the RO readjudicated the Veteran’s claim and issued a rating decision and supplemental statement of the case (SSOC) in July 2020, in which the RO granted an increased disability rating of 70 percent, effective February 10, 2020. The Board concludes that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). As the RO did not grant the maximum benefit sought, however, the Veteran’s claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board further notes at the outset that a claim of entitlement to a total disability rating based upon individual unemployability (TDIU), is not before the Board. The Veteran initially filed an Application for Increased Compensation Based on Unemployability in April 2012, which was denied in an August 2013 rating decision. In an April 2016 rating decision, the RO reopened but again denied entitlement to a TDIU. The Veteran did not timely appeal that denial and, as such, it became final. See April 2016 Notice of Disagreement (NOD) (appealing only rating of PTSD). For additional procedural clarity, the Board notes that the Veteran’s claim to an initial rating in excess of 30 percent remained open following the July 2011 rating decision as additional evidence was submitted within one year. See July 2011, August 2013, April 2015 rating decisions; Social Security Administration records received March 2012. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Increased Rating Legal Criteria Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nonetheless, separate, or staged, ratings can be assigned for separate periods during the initial rating period on appeal based on the facts found. See O’Connell v. Nicholson, 21 Vet. App. 89, 91-92 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Additionally, 38 C.F.R. § 3.400(o)(2) provides that an increase in disability compensation is to be assigned from the “[e]arliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date, otherwise, date of receipt of claim.” The Court of Appeals for Veterans Claims (Court) has held that effective dates “should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the Veteran’s disability] first manifested.” Swain v. McDonald, 27 Vet. App. 219, 223-24 (U.S. 2015), (citing DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011)). Moreover, the effective date for an increased rating, as well as for an initial rating or for staged ratings, is predicated on when the increase in the level of disability can be ascertained. See Swain, 27 Vet. App. at 224. Mental disorders are rated under the General Rating Formula for Mental Disorders pursuant to 38 C.F.R. § 4.130, and the Veteran’s PTSD is rated under Diagnostic Code 9411. Under this 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). In this case, the RO assigned the Veteran an initial PTSD disability rating of 30 percent. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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). 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 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; or memory loss for names of close relatives, own occupation or own name. 1. The claim of entitlement to an initial evaluation in excess of 30 percent from January 28, 2011 to April 12, 2012 for PTSD. The Veteran contends that he is entitled to an increased disability rating for his service-connected PTSD throughout the period on appeal. The Board finds that staged ratings are appropriate in this case, and further finds that the evidence of record throughout this period warrants an increased rating of 50 percent, but no higher, for PTSD. VA received the Veteran’s service connection claim for PTSD on January 28, 2011. According to the Veteran’s VA treatment records, in January 2011 he was assessed with PTSD symptoms such as recurrent intrusive thoughts of traumatic experience, flashbacks, irritability, and hypervigilance, and a treatment plan was developed for him. See January 2011 Mental Health Consultation. At the time of this assessment, the Veteran was observed to be alert and oriented to person, place and time, and had fair eye contact and insight. He was appropriately dressed, but his mood was anxious and constricted. No risk factors for self-harm were identified. The Veteran described his desire to return to school to finish his bachelor’s degree, and his focus, at the time, on caring for his dog. Id. In March 2011 the Veteran received his initial VA examination for his claimed PTSD. The Board notes that the Veteran has not asserted that this VA examination was inadequate, and the Board finds the examination provides competent, credible, and probative evidence regarding the severity of the Veteran’s PTSD during this period. According to this examination report, the Veteran described positive relationships with his immediate family, including his three step-children. He described having limited social relationships, however, and stated he did not like being around other people. His affect was guarded, and the Veteran described himself to be anxious and angry. He reported feeling angry at others, noting that he had “taken a swing” at a fellow spectator at a baseball game less than a year earlier. He described having poor sleep quality and frequent nightmares. The Veteran denied hallucinations and suicidal ideations. The examiner observed the Veteran to be fully oriented to person, time, and place; his grooming and dress were appropriate. The Veteran’s psychomotor activity was observed to be within normal limits and his speech was relevant, fluent, and coherent. He described no issues with completing daily activities and was able to drive, travel, and engage in recreational activities as he wished. The Veteran described having moderately distressing reexperiencing of in-service traumas, per the examination report. The Veteran described persistent feelings of hyperarousal and irritability, among others, as well as interpersonal conflicts. The examiner concluded that the Veteran’s PTSD symptoms led to a mild decrease in work efficiency and ability to perform occupational tasks during periods of significant stress. On its own, the VA examination would support a 30 percent rating, however, when considered in the context of the other mental health records from this period, a 50 percent rating is most appropriate. For example, group treatment records from March 2011 reflect that the Veteran was referred for anger management classes in addition to his group PTSD therapy. Further, records from the Social Security Administration show that the Veteran was considered to have “moderate difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence or pace[.]” Having considered the evidence of record throughout this period, the Board concludes that a 50 percent disability rating is appropriate. The Veteran’s disability picture manifested with symptoms of anxiety, suspiciousness or hyperarousal, difficulty sleeping, as well as with irritability and interpersonal difficulties. He experienced disturbances of motivation and mood, as shown by his need for anger management therapy and his difficulty managing his reactions to re-experiencing trauma from service. See March 2011 VA treatment records. His suspiciousness and irritability toward others resulted in the Veteran’s having difficulty in establishing and maintaining effective work and social relationships and caused occupational and social impairment with reduced reliability and productivity. A higher, 70 percent rating, during this period is not warranted as the Veteran’s overall disability picture did not more closely approximate symptoms such as suicidal ideation (which he consistently denied); obsessional rituals interfering with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently. While the Veteran had difficulty with his mood and anger, during the period on appeal he managed to control his impulses, and maintained appropriate hygiene, conversation, and general responsibilities, including care for his pet and positive relationships with his family members. Accordingly, and having viewed the evidence of record holistically, the Board concludes that for this period the higher 50 percent evaluation should be assigned as the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. 2. The claim of entitlement to an evaluation in excess of 50 percent from April 13, 2012 to January 14, 2019 for PTSD. The Veteran contends that he is entitled to an increased disability rating for his service-connected PTSD throughout this period. The Veteran contnded in his Form 9 that the VA examination of December 2012 was not adequate, and if it had been conducted in person, the problems he was experiencing would have been recognized and documented. The Veteran also reported he was no longer involved in social activities, that he felt like a prisoner in his own home, that he had recently increased his depression medication and suggested that his symptoms may have increased in severity since the December 2012 VA examination. The Veteran’s representative testified during the hearing before the Board, that she had experienced the Veteran’s unprovoked anger and hostility towards her. See January 2019 Hearing Transcript. The Board notes that the severity of the Veteran’s PTSD symptoms during this period did not worsen to an extent sufficient to warrant a rating increase to 70 percent. While the Veteran contends that the December 2012 VA examination was inadequate, the record contains numerous mental health treatment records to support no higher than a 50 percent rating. In fact, some treatment records show a decrease in severity of symptoms during this period. For example, a November 2012 record from Carolina Behavioral Care (CBC) noted the Veteran’s report that his “his mood and anger control has been stable. He has been able to get through a crisis in his marriage without losing his temper or acting inappropriately. He feels that he has basic control over his response to stress.” A January 2013 treatment note from the same provider indicates that the Veteran’s grooming, attention, concentration and memory were normal; his insight and judgment were stable; his thought organization was normal and affect appropriate. His depressive and irritability symptoms were present but improving. See also January and September 2015 CBC treatment records. The Veteran did not express suicidal ideation or engage in obsessional rituals that interfered with his routine activities during this period. Mental status evaluations during treatment sessions throughout this time consistently noted the Veteran to be alert, oriented, and with appropriate speech. The Veteran did not present as or report experiencing a near-continuous state of panic or depression affecting his ability to function independently, appropriately and effectively. See e.g., November 2012 and January 2013 CBC treatment records. While the Veteran still reported impaired impulse control, there is no indication that his psychiatric condition resulted in spatial disorientation; neglect of his personal appearance or hygiene; or cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Subsequent treatment records further show that a 50 percent rating is appropriate for this period. For example, a September 2017 VA mental health group treatment note reflects that the Veteran was alert and oriented with a casual and neat appearance. He made appropriate eye contact throughout the session, and his “speech had normal rate, volume, and prosody.” His thought process was relevant and goal oriented. His mood was euthymic and his affect congruent with content. There were no signs of psychosis and no delusions elicited during his interview. The Veteran did not report suicidal or homicidal ideation. See also July 2016, December 2016, January 2017, January 2018 individual and group psychotherapy VA records. He was able to complete his undergraduate degree, with accommodations, during this period on appeal. See Brigham Young University letter received June 2016. Records from 2018 reflect that the Veteran continued to engage in treatment and medication management for his PTSD. An April 2018 medication appointment indicates the Veteran reported it being only “somewhat” difficult to engage in tasks such as “doing work, taking care of things at home, or getting along with others” (as opposed to finding it very or extremely difficult). He engaged in 150 minutes of moderate intensity exercise per week as well as weight training. See also October 2018 record (indicating Veteran was able to travel out of state with son to engage in outdoor recreational activities). As such, the Board finds entitlement to a rating in excess of 50 percent for this period unwarranted. 38 U.S.C. § 5107. 3. The claim of entitlement to an evaluation in excess of 50 percent, but no higher than 70 percent, from January 15, 2019 for PTSD. The Veteran contends he is entitled to an increased rating during this period. Specifically, the Veteran contends that his symptoms have worsened, that he has anger issues, an exaggerated startle response, is aggressive towards people (especially anyone who is behind him), has issues interacting socially, has feelings of intense anxiety, and has begun secluding himself. On remand, the RO granted an increased rating from 50 to 70 percent, effective as of the date of an updated VA examination, which was not completed until February 2020. During his January 2019 hearing before the Board, the Veteran testified in detail as to his subjective symptoms and his contentions that his condition had increased in severity. The Veteran testified in January 2019 that he experienced increased levels of anger and hostility toward others, and of engaging in isolative behaviors. The Veteran stated that if his spouse did not accompany him in public, he would often experience issues managing his symptoms, causing conflict with others. The Board finds the Veteran’s January 15, 2019 testimony competent, credible, and probative evidence that the increase in the severity of his condition (and therefore the increase in his disability rating) began in approximately January 2019, thus warranting an earlier effective date for his 70 percent rating. The Veteran’s medical treatment records also reveal a shift in the severity, frequency, and duration of the Veteran’s PTSD symptoms beginning in early 2019. Treatment records during this time routinely reflect the Veteran’s mood or affect as anxious. Records from June 2019 indicate that the Veteran continued to experience depression, anxiety, hypervigilance, nightmares, and flashbacks. He reported an incident when he attempted to attend his granddaughter’s graduation but felt “boxed-in” due to the number of attendees. He reported that his step-son had to “rescue” him from the situation. The Veteran’s testimony and records show that he is unable to maintain his composure in situations where a person is standing behind him. It appears that the Veteran’s non-medication PTSD treatment (such as group and individual therapy) ended in 2018, which could have contributed to the increase in symptoms. The Veteran’s February 2020 VA examination confirmed that his symptoms had reached the level of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board finds this examination provides persuasive evidence in support of a 70 percent rating. Based on the Veteran’s lay report of symptoms during the examination, he was nearly always “on edge” with anxiety and hypervigilance. He had difficulty managing his reactions in public, resulting in isolative behavior. He denied socializing. The Veteran and his spouse reported to the examiner that the Veteran had trouble with his short- and long-term memory, that he took longer to complete household tasks and neglected household chores. While the Veteran’s overall disability picture worsened during this period, the next higher rating of 100 percent is not appropriate. The evidence of record does not indicate symptoms of or approximating gross impairment in thought processes or communication or persistent delusions or hallucinations. The Veteran managed appropriate communication with his providers and spouse, and, while he continued to have difficulty with anger and irritability, there is no indication that his condition caused grossly inappropriate behavior or cause persistent danger of hurting himself or others. The Veteran managed to perform activities of daily living (including maintenance of minimal personal hygiene), and other basic activities. Accordingly, the Board finds the Veteran entitled to a 70 percent rating, with an earlier effective date of January 15, 2019. However, as outlined above, the preponderance of the evidence of record throughout this period weighs against a rating in excess of 70 percent. 38 U.S.C. § 5107. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hart, 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.