Citation Nr: 21005037 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-22 849A DATE: January 28, 2021 ORDER Entitlement to an initial 30 percent disability rating prior to April 16, 2016, for service-connected posttraumatic stress disorder (PTSD), is granted. Entitlement to a disability rating in excess of 30 percent from April 16, 2016 through August 28, 2017, for service-connected PTSD, is denied. Entitlement to a disability rating in excess of 70 percent from August 29, 2017, for service-connected PTSD, is denied. FINDINGS OF FACT 1. Prior to August 28, 2017, the Veteran’s PTSD most nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Since August 29, 2017, the Veteran’s PTSD has not more nearly approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent, but no higher, disability rating prior to April 16, 2016, for service-connected PTSD, have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 30 percent from April 16, 2016 through August 28, 2017, for service-connected PTSD, have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for a rating in excess of 70 percent since August 29, 2017, for service-connected PTSD, have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1986 to October 1992, to include service in Southwest Asia, and on active duty for training from December 1984 to April 1985. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that awarded service connection for PTSD and assigned an initial 10 percent disability rating. The Board notes that, after the Veteran’s appeal of the initial 10 percent rating assigned, subsequent rating decisions by the RO awarded the increased 30 and 70 percent ratings that are currently assigned during the appeal. The appeal was previously before the Board in January 2020, where they were remanded for additional development, and now return for further appellate review. In September 2018, the Veteran testified during a hearing before the undersigned Veterans Law Judge. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Increased Ratings for PTSD Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran’s PTSD is evaluated under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 10 percent rating is warranted when there is 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. Id. A 30 percent rating is warranted when 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, weekly or less often panic attacks, chronic sleep impairment, and 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 in understanding complex commands; impairment of short- and long-term memory such as, 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 there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). 1. A rating in excess of 10 percent prior to April 16, 2016. The Veteran was afforded a VA examination in August 2014 for the purposes of his initial service connection claim. During the examination, it was noted that the Veteran was participating in mental health treatment at his local VA Medical Center (VAMC), as well as through prescription medication. Upon interview and examination, the examiner noted that, while the Veteran’s mood was “alert, watchful, and nervous,” his orientation, appearance, speech, thought content, memory, judgment, and insight were all intact or within normal limits. He was appropriately dressed and groomed and there were no reports of delusions, hallucinations, or suicidal/homicidal ideation. The examiner opined that his PTSD manifested 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 medication. Based on the examination, the RO assigned the Veteran his initial 10 percent disability rating. The Board notes, however, that while the examination report lists no actual symptoms of his PTSD, the Veteran did report symptoms indicative of sleep impairment. Treatment records also show some reports of depression and anxiety. As these symptoms more closely approximate the next higher, 30 percent rating under Diagnostic Code 9411, and although a May 2015 VA treatment record notes his PTSD as “in remission” and with minimal symptoms, the Board resolves all doubt in the Veteran’s favor during this period and finds that a 30 percent rating is warranted. See 38 C.F.R. § 4.130. A rating higher than 30 percent is not warranted, however, as the August 2014 examination is absent symptoms more closely approximating a 50 percent rating, 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 such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; and disturbances of motivation and mood. While the Board acknowledges the Veteran’s reported trouble establishing and maintaining effective work and social relationships, the evidence as a whole does not show that the Veteran’s PTSD has resulted in occupational and social impairment with reduced reliability and productivity during this period. 38 C.F.R. § 4.130, Diagnostic Code 9411. Again, the VA examiner described an overall level of impairment much lower than occupational and social impairment with reduced reliability and productivity. Also of note, while the Veteran reported family troubles and isolation, he noted still having contact with his children. Additionally, while an April 2014 VA treatment record notes the Veteran having conflict with a coworker, he reported continued employment as a barber for a number of years, a position not conducive to isolation and avoidance. There are no other medical records during this period on appeal that are in significant conflict with the above findings. Thus, a 30 percent initial disability rating, but no higher, is warranted for the period on appeal prior to April 16, 2016. 38 C.F.R. §§ 4.3, 4.7. 2. A rating in excess of 30 percent from April 16, 2016 through August 28, 2017. Similar to the above, the Board also does not find that a higher, 50 percent rating is warranted for the next period on appeal for which the RO assigned a 30 percent rating in a June 2016 rating decision. An additional VA examination was afforded in April 2016. During the examination, the Veteran reported symptoms similar to the August 2014 examination, such as anxiety and chronic sleep impairment. The examiner noted that, upon interview and examination, while the Veteran’s mood was dysthymic (depressed) and his affect was restricted, he was polite and cooperative, appropriately dressed and groomed, with normal speech, orientation, memory, insight, and judgment. He denied delusions, hallucinations, or suicidal/homicidal ideation. The examiner opined that the Veteran’s PTSD manifested 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. Both the above examination and relevant medical treatment records during this period are absent suggestion that the Veteran’s PTSD symptoms more closely approximated occupational and social impairment with reduced reliability and productivity so as to warrant the next higher rating of 50 percent as outlined above under Diagnostic Code 9411. See 38 C.F.R. § 4.130. During this period the medical record reflects primarily symptoms of depressed mood, anxiety, and chronic sleep impairment. Additionally, while family troubles and isolation were noted in the previous examination in 2014, the Veteran reported to the April 2016 examiner that he was continuing to work and now had a girlfriend he was planning to marry. As the evidence is against a finding that the Veteran’s PTSD more closely approximated a 50 percent rating, an increased rating during this period must be denied. 38 C.F.R. §§ 4.3, 4.7. 3. A rating in excess of 70 percent from August 29, 2017. In May 2018, the Veteran’s disability rating for his PTSD was again increased, with the RO assigning a 70 percent evaluation effective August 29, 2017. At his hearing before the undersigned in September 2018, the Veteran continued to report symptoms of anxiety, depression, and chronic sleep impairment, as well as issues with his short-term memory and motivation. Based on the following, however, and while the Veteran’s described symptoms are certainly indicative of a rating higher than his previous 30 percent rating, the Board does not find that the next higher, 100 percent rating is warranted for the period beginning August 2017. VA treatment records during this period through 2018, as well as a VA examination afforded in April 2018, continue to show the Veteran reporting symptoms of anxiety, suspiciousness, and chronic sleep impairment. Of particular note, a February 2018 VA treatment record notes the Veteran was doing “very well” in regard to his PTSD, and the April 2018 VA examiner stated that his symptoms appeared to be at a similar level as during the previous examination in 2016. The examiner again opined that the severity of his symptoms still more closely approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. There is no indication prior to the April 2018 examination that the Veteran’s PTSD warranted the next higher 100 percent rating under Diagnostic Code 9411 absent symptoms more closely approximating total occupational and social impairment, 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; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130. In fact, the record reflects that the Veteran’s 30 percent rating likely should have continued based on the available VA treatment records and the findings upon VA examination in April 2018. While the RO assigned the current 70 percent rating based on an August 29, 2017 VA Form 21-0966 (Intent to File a Claim for Compensation and/or Pension), the Veteran’s claim for an increased rating was still on appeal and certified to the Board at this time. Thus, it appears this effective date was assigned in error. The Board, however, will not disturb the effective date of the Veteran’s 70 percent rating. Further, while an additional VA examination was afforded in January 2020, the evidence continues to be against a higher, 100 percent rating. While the examination report notes that the Veteran’s PTSD now manifested the additional symptoms of disturbances of motivation and mood, as well as difficulty in establishing and maintaining effective work and social relationships, these symptoms do not more closely approximate total occupational impairment. Rather, these additional symptoms more nearly approximate a 50 percent rating under the rating criteria. See 38 C.F.R. § 4.130. Upon interview and examination, the Veteran was appropriately dressed and groomed, was fully oriented, his thoughts were organized and logical, attention, concentration and memory were intact, insight and judgment were good. Moreover, the examiner again opined that the Veteran’s PTSD more closely approximated only occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, the criteria for his previous, 30 percent rating. Again, however, the Board will not disturb the Veteran’s 70 percent rating based on occupational and social impairment with deficiencies in most areas. There are no other medical treatment records in significant conflict with the above medical evidence that the Veteran’s PTSD does not more closely approximate total occupation and social impairment. While he described symptoms of memory loss and a lack of motivation during his Board hearing, he also noted that he has maintained employment and was recently married. Neither the symptomology described at his hearing nor the medical evidence at the time indicate that these additional symptoms are of such severity to more closely approximate total impairment, such as an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene) or memory loss for names of close relatives, own occupation, or own name. Again, VA examiners have consistently described an overall level of impairment much lower than total occupational and social impairment and treatment records and lay statements are not in significant conflict with those assessments. It is noted that the VA examiner’s assessments were made after interview of the Veteran and with consideration of his lay statements. Hence, they are highly probative. Thus, as the evidence during this appeal period is against a finding of total occupational and social impairment, entitlement to a 100 percent rating must be denied. 38 C.F.R. §§ 4.3, 4.7. The Board is sympathetic to the Veteran’s lay statements that his disability is worse than currently evaluated during the periods on appeal and those statements have been considered. The Veteran is competent to report observable symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated, and were made after consideration of the Veteran’s lay statements. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.