Citation Nr: 21063529 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-34 434 DATE: October 14, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with mild major depressive disorder and generalized anxiety disorder is denied prior to October 24, 2015. A disability rating of 70 percent for PTSD with mild major depressive disorder and generalized anxiety disorder is granted from October 24, 2015. Entitlement to a disability rating in excess of 70 percent for PTSD with mild major depressive disorder and generalized anxiety disorder is denied from October 24, 2015. FINDINGS OF FACT 1. Prior to October 24, 2015, 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. 2. From October 24, 2015, the severity, frequency, and duration of the Veteran's symptoms more closely approximate occupational and social impairment with deficiencies in most areas. 3. From October 24, 2015, the severity, frequency, and duration of the Veteran's symptoms do not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for PTSD are not met prior to October 24, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a 70 percent disability rating for PTSD are met from October 24, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. 3. The criteria for a disability rating in excess of 70 percent for PTSD are not met from October 24, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran appeals a January 2016 rating decision stemming from a September 2014 claim in which service connection and a 50 percent rating effective from September 29, 2014 were granted for PTSD. He seeks a higher rating. The matter was remanded by the Board to the agency of original jurisdiction (AOJ) in a February 2019 decision. In a July 2020 rating decision, the AOJ awarded a 70 percent rating from February 19, 2020, the date of a VA psychiatric examination. The matter has been returned to the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The record consists, in relevant part, of the Veteran's disability claim, statements describing his degree of impairment, VA treatment records, December 2015 and February 2020 VA examination reports and Staten Island (SI) Vet Center treatment records with a detailed intake assessment dated October 24, 2015. While referenced throughout the appeal by the Veteran, these SI Vet Center records were ultimately added to the record in December 2019. A rating in excess of 50 percent is denied prior to October 24, 2015. A 70 percent rating is granted from October 24, 2015. A rating in excess of 70 percent is denied from October 24, 2015. The Veteran appealed his 50 percent disability rating, arguing in February 2016 his Notice of Disagreement, that the disability is productive of greater impairment. He indicated that records from his ongoing therapy at the SI Vet Center would support this theory. The Veteran's PTSD is assigned a staged rating of 50 then 70 percent under Diagnostic Code 9411. 38 C.F.R. § 4.130. The disability is rated using the General Rating Formula for Mental Disorders (General Formula). The preponderance of the evidence is against finding that this disability meets or more nearly approximates the criteria for more than a 50 percent rating prior to October 24, 2015, the date of his detailed intake assessment at the SI Vet Center; the manifestations more nearly approximate the criteria for 70 percent as of that date rather than simply from the date of the February 2020 VA examination, and the criteria for a rating in excess of 70 percent are not met or more nearly approximated from October 24, 2015. It is relevant to note that a 50 percent rating is assigned 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 (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. A 70 percent rating is assigned for 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 worklike setting); inability to establish and maintain effective relationships. Regulations pertaining to psychiatric disorders were amended in August 2014. 79 Fed. Reg. 45,093 (Aug. 4, 2014) (effective Aug. 4, 2014). Specifically, the regulations were updated so that all psychiatric diagnoses must be in conformity with diagnostic criteria in the Diagnostic and Statistical Manual, Fifth Edition, (DSM-5) as opposed to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). Id. However, the regulation states that it was not the intent of the Secretary to have the rule change apply to cases that had been certified to or were pending before the Board at the time of the change. Id. As the Veteran's claim was not certified to or pending before the Board on August 4, 2014, the criteria in the DSM-5 applies. It is not in dispute that the February 2020 VA examination report is consistent with a 70 percent rating based on based on obsessional rituals which interfere with routine activities; difficulty in adapting to stressful circumstances; difficulty in adapting to work; occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; suspiciousness; depressed mood; difficulty in adapting to a worklike setting; mild memory loss; anxiety; difficulty in establishing and maintaining effective work and social relationships; impaired impulse control and chronic sleep impairment. However, upon review of the SI Vet Center treatment records, which the Veteran has consistently asserted would support his claim as to greater than 50 percent impairment, we find that the criteria for a 70 percent rating have been more nearly approximated since his initial intake assessment there on October 24, 2015. A close inspection of the detailed intake evaluation and subsequent sessions with counselor D.W., reveals that the Veteran had appreciably the same manifestations that were cited in the February 2020 examination since October 24, 2015. He self-referred at that time, reporting depressed mood and irritability and hopelessness. The examiner emphasized PTSD was manifested by emotional numbing interpersonal, avoidance and isolation. As therapy progressed, he revealed more about lack of interest and continued lack of participation in activities that were previously rewarding and pleasurable. In April 2016 he reported increased sleep disturbance and intrusive thoughts impacting concentration, disturbance in mood and problems relating with others. We noted in our 2019 remand that in his June 2017 Substantive Appeal (on VA Form 9), the Veteran asserted that his psychiatric disorder causes greater limits in the ability to establish and maintain meaningful relationships. This is essentially supported by the SI Vet Center records, despite the fact that this was not fully articulated at his VA examination in December 2015. We also note that there are VA treatment records which show ongoing problems and could certainly be construed to support a 70 percent rating from prior to February 2020 when viewed in the context of the SI Vet Center records and the Veteran's assertions. Counselor D.W. paints a clear disability picture in the detailed notes that allows us to find the evidence in relative equipoise on this point and to conclude that criteria for a 70 percent rating were more nearly approximated from October 24, 2015 rather than just from February 2020. However, prior to October 24, 2015, there was not more than occupational and social impairment with reduced reliability and productivity consistent with the currently assigned 50 percent rating. There are no PTSD screens or treatment records suggesting manifestations consistent with more than this level of impairment. Accordingly, a rating in excess of 50 percent is denied prior to that date. Finally, a rating in excess of 70 percent is denied as of October 24, 2015. Again, the record from that date is consistent with the findings on the February 2020 examination. The VA examiner at that time did not find total occupational and social impairment. Rather, they specifically found a lesser degree of occupational and social impairment consistent with a 70 percent rating under DC 9411. Neither the 2020 VA examination nor the treatment record indicates 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. Mental status examinations are replete with reference to the fact that he is oriented and not a danger to self or others, that delusions or hallucinations are not present, that memory loss is mild as opposed to with memory loss for names of close relatives, own occupation, or own name, and that there is not intermittent inability to perform activities of daily living to include personal hygiene. No grossly inappropriate behavior was described or observed. While impairment is indeed demonstrated, total occupational and social impairment due to PTSD has not been shown or approximated. The Board assigns significant probative weight to the 2020 VA assessment of the well-informed mental health provider on this matter as they are a trained professional. Simply put, none of the mental health records reflect that the Veteran has manifested the symptoms associated with total occupational and social impairment defined above. Indeed, the Veteran does not actually argue that total impairment is present or that the criteria for a total rating are present. He reports in February 2020 that he has been working at the post office, in the back, since December 2016, and that he does overtime. He has a wife and children and sometimes goes to the park with them, though he recognizes he socially isolates. There is a lack of support in the record for total impairment; the Board concludes that the February 2020 VA medical opinion is the most probative evidence as to degree of impairment and symptoms. Based on a careful review of all the evidence, the Board finds that a 70 percent rating for PTSD and no higher is warranted from October 24, 2015, but a rating in excess of 50 percent prior to that date is not warranted. The Board has considered all psychiatric symptoms in reaching the above conclusions. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.