Citation Nr: 21004767 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 13-31 896 DATE: January 28, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to May 28, 2020 is denied. Entitlement to a disability rating in excess of 70 percent for PTSD from May 28, 2020 is denied. FINDINGS OF FACT 1. Since the initial grant of service connection, the Veteran’s PTSD has most closely approximated occupational and social impairment with reduced reliability and productivity. 2. From May 28, 2020, the Veteran’s PTSD most closely approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 50 percent for PTSD prior to May 28, 2020, have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a disability rating in excess of 70 percent for PTSD from May 28, 2020, and thereafter, have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 2004 to September 2004 and August 2006 to July 2007 with additional service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in May 2015 and February 2019. The case has since been returned to the Board for appellate review. During the pendency of this appeal, in a June 2020 rating decision, the RO increased the rating evaluation of the Veteran’s PTSD from 50 percent to 70 percent, effective May 28, 2020, the date of the Veteran’s VA examination for PTSD. As this award did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board has considered the Veteran’s claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Increased Rating for PTSD 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 C.F.R. § 4.1. 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. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are appropriate for when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The Veteran is in receipt of a 50 percent rating for his PTSD for the period prior to May 28, 2020, and a 70 percent rating beginning May 28, 2020. The disability is rated under the General Rating Formula for Mental Disorders (General Rating Formula). He asserts that his service-connected PTSD is more severe than is reflected by his current staged ratings. Under the General Rating Formula, a 50 percent rating is warranted when the psychiatric disorder results in 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 and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when the psychiatric disorder results in 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the psychiatric disorder results in 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; and memory loss for names of close relatives, own occupation, or own name. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of occupational and social impairment. Id. The Veteran was first afforded a VA PTSD examination in January 2011. The Veteran reported symptoms including recurrent and intrusive distressing recollections of his traumatic event(s); recurrent distressing dreams of the event; avoidance of thoughts, feelings, or conversations associated with his trauma; markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others; sense of foreshortened future (e.g., does not expect to have a career, marriage, children, or normal life span); difficulty falling or staying asleep; irritability or outbursts of anger; difficulty concentrating; hypervigilance; and exaggerated startle response. He stated that he avoids crowds and appreciated being able to work the third (overnight) shift at Walmart. He explained that he had insomnia and had nightmares of Iraqi combat experiences. He reported that he lived with his parents and older brother, describing the relationship as good. He stated that he was married in January 2008, but was informally separated for a few months in Fall 2010 due to temper, irritability, and problems with drugs. On mental examination, the Veteran’s general appearance was clean, and he was dressed casually. His psychomotor activity and speech were unremarkable. His attitude was cooperative, and his affect was appropriate and constricted. The Veteran was fully oriented to person, place, and time. His thought process and content were unremarkable. He did not have delusions or hallucinations. He was noted as having inappropriate behavior because he lost his temper frequently and had a short fuse when people slowed him down in traffic. The examiner noted that the Veteran did not have obsessive/ritualistic behavior, panic attacks, homicidal thoughts, or suicidal thoughts. His impulse control was fair. He was able to maintain minimum personal hygiene and his memory was normal. The Veteran was next afforded a VA PTSD examination in April 2012. The Veteran reported symptoms including anxiety; hypervigilance; and exaggerated startle response. He stated that he had been married for four years, though noted that he was separated twice for approximately four months each during the four years of marriage. He said that the marriage was going well and explained that they lived with his parents. He stated that he felt distant from his parents and did not know what to talk about with them. He reported that he spent almost all of his time in the bedroom playing video games or watching movies, and that he rarely left his home because he got nervous when he left. He explained that he had few friends and avoided contact with most people. He reported working at Walmart on the third shift one to two days each week since 2008. He explained that even though he worked an overnight shift when no customers were in the store, he still got nervous/anxious to go to work. On mental examination, the Veteran was alert and oriented. He was dressed casually, and his hygiene was appropriate. The Veteran’s speech was clear and coherent. He spoke at a regular rate, rhythm, and volume. His eye contact was appropriate, and he did not demonstrate difficulties hearing. His thought process was linear, logical, and goal directed without psychotic content. His affect was restricted but appropriate. He denied any self-harm, suicidal or homicidal thoughts, plans or intentions. His memory was intact. His insight was adequate, and judgement appeared sound. The Veteran reported that he had distressing thoughts about his military experiences and tried not to think about them. He stated that he had nightmares occasionally and reported sporadic flashbacks to his time in Iraq when he drives at night and at a crosswalk near his home (he explained that he had to watch crosswalks in Iraq). He reported that he became nervous when he encountered a trigger, which included loud noises, roadside debris, crosswalks, and helicopters. He reported mild depressive symptoms, financial stress, some general forgetfulness (misplacing things around his home), and nervousness. The Veteran was then afforded a VA PTSD examination in July 2013. The Veteran reported symptoms including anxiety and difficulty in establishing and maintaining effective work and social relationships. He stated that he had been married for five years and that he and his wife “g[ot] along for the most part”. He said that his parents lived near him and he saw them ever two weeks. He explained that he saw his brother on holidays and that he saw his wife’s family every few weeks. He reported having a neighbor that he got together with and a friend, who lived far away, whom he talked to over the phone. He stated that he worked three nights a week (the overnight shift) at Walmart, but that his attendance was an issue, explaining that he would call out from work once a week. He explained that he was anxious around people, which affected his work. The Veteran recounted experiencing difficulty falling or staying asleep; irritability or outbursts of anger; and hypervigilance. The Veteran reported experiencing nightmares. He also reported that he only bathed and brushed his teeth once every month; however, the examiner noted that this was inconsistent with provider notes over the years that all indicated that the Veteran had good hygiene and grooming. On mental examination, the Veteran was fully oriented to person, place, time, and situation. The examiner noted the Veteran was pleasant and overtly cooperative but appeared to see himself and report himself as much more impaired than other evidence and his presentation would suggest. The examiner noted his manner was relaxed and that he did not exhibit any signs of hypervigilance or anxiety during the interview. The Veteran was well groomed, clean shaven, and neatly dressed in clean casual clothing appropriate to the situation and weather. He had no body odor or bad breath. He walked without assistance and his motor issues were otherwise intact. The examiner noted the proportion of direct eye contact was within normal limits and that he had no deficits in vision or hearing that were notable. The Veteran could recall 3/3 words immediately and 2/3 works after five minutes; however, his answers for the third were of a pattern suggesting perhaps poor effort. The examiner noted that such a difficulty was not consistent with his observed good short-term memory and intermediate term memory throughout the interview. The examiner deemed the Veteran’s short-term and long-term memories to be within normal limits. The examiner found the Veteran had 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. Following the February 2019 Board remand, the Veteran was afforded a VA PTSD examination in May 2020. The Veteran reported symptoms including depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran reported having a “good” relationship with his parents. He also reported that he and his wife had been married since 2014 and that they “g[ot] along well.” He explained that he had a couple of friends that he stayed in touch with by text messages. He did not have children. He further reported that he had worked as a truck driver since 2014 and that he had been with his employer since September 2019. The Veteran recounted experiencing hypervigilance; exaggerated startle response; and problems with concentration. On mental examination, the Veteran was alert and oriented to person, place, time, and to the nature of the exam. His mood was euthymic. His affect was congruent in range and appropriate to topic, based on demeanor and conversational content. He was fully engaged and interacted in a cooperative manner. The Veteran displayed logical and goal-directed thought. He did not exhibit tangential thinking, circumstantial thinking, loose associations, flight of ideas, incoherent thoughts, difficulty in understanding complex commands, or gross impairment in through process or communication. He exhibited no auditory, visual or tactile hallucinations, and did not report any sensory distortions. He revealed no fixed delusions and revealed no specific obsessions or preoccupations during the examination interview. No grossly inappropriate behavior was described or observed. The Veteran established and maintained eye contact in an appropriate manner. The Veteran appeared to recall history without obvious impairment and no obvious impairment was noted as to his attention and concentration. He denied suicidal and homicidal intentions, intents, and plans. The examiner found the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, or mood. VA treatment records reflect symptoms including insomnia, nightmares of his service time with intrusive memories, hypervigilance, an increased startle response, irritability, anxiety, paranoia, and depressed mood. Prior to May 28, 2020, the preponderance of the evidence is against a finding that the Veteran’s PTSD was manifested by symptoms warranting a 70 percent evaluation, as the evidence does not show functional impairment comparable to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board notes that the Veteran’s PTSD symptoms prior to May 28, 2020, more closed approximated the criteria for a 50 percent rating. Specifically, the Veteran reported flattened affect; impairment of short-term memory; disturbances of mood and motivation; and difficulty in establishing and maintaining effective work and social relationships. The Veteran did not report any suicidal thoughts or ideations, and there was no evidence of 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; and spatial disorientation. He was able to retain his marriage and familial relations. To the extent that the Veteran reported neglect of personal appearance and hygiene, and difficulty in adapting to stressful circumstances (including work or a worklike setting) (symptoms described in the 70 percent rating), the Board does not find that the totality of the Veteran’s psychiatric symptoms were of such frequency or severity as to result in occupational and social impairment with deficiencies in most areas prior to May 28, 2020. Accordingly, an increased rating greater than 50 percent for PTSD prior to May 28, 2020 is not warranted. Regarding the period beginning May 28, 2020, the preponderance of the evidence is against a finding that the Veteran’s PTSD is manifested by symptoms warranting a 100 percent evaluation, as the evidence does not show functional impairment comparable to total occupational and social impairment. The Board notes that the Veteran’s PTSD symptoms from May 28, 2020, and thereafter, more closely approximate the criteria for a 70 percent rating. Specifically, the May 2020 VA examiner found the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Further there is no evidence of any of the symptoms described in the 100 percent rating, such as gross impairment in thought processes or communications; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger or hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Given these facts, the Board concludes that the for the period beginning May 28, 2020, the Veteran’s PTSD most closely approximates the requirements for a 70 percent evaluation. Consequently, an increased rating greater than 70 percent for PTSD is not warranted. Ultimately, the Board concludes that the preponderance of the evidence is against a finding that the Veteran’s PTSD was manifested by symptoms warranting a 70 percent evaluation or higher prior to May 28, 2020, as the evidence does not show functional impairment comparable to occupational and social impairment with deficiencies in most areas. Similarly, the preponderance of the evidence is against finding that the Veteran’s PTSD was manifested by symptoms warranting a 100 percent rating from May 28, 2020, as the evidence does not show functional impairment comparable to total occupational and social impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9411; Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). “[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio, 713 F.3d at 117. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.